Edwards v. United States

• Decision Date: 25 June 1964
• Docket Number: No. 17442.,17442.
• Parties: Tommy Martin EDWARDS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

333 F.2d 588 (1964)

Tommy Martin EDWARDS, Appellant, v. UNITED STATES of America, Appellee.

No. 17442.

United States Court of Appeals Eighth Circuit.

June 25, 1964.

Thomas Hanlon, Tulsa, Okl., made argument for appellant and filed brief.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument for appellee and filed brief with Miles W. Lord, U. S. Atty., Minneapolis, Minn.

Before VOGEL and MATTHES, Circuit Judges, and HARPER, District Judge.

MATTHES, Circuit Judge.

On April 24, 1963, a jury found Tommy Martin Edwards guilty of having transported from Summit, Mississippi, to Mankato, Minnesota, on or about July 5, 1961, a firearm after Edwards had been convicted of a crime of violence (assault with a dangerous weapon) in the State of Oklahoma on or about March 15, 1949.¹ Thereafter, the trial court, Judge Larson, sentenced Edwards to three years imprisonment and assessed a fine of $1,000. From this judgment, Edwards has appealed.

Appellant's initial point is that his "motion for acquittal at the close of the Government's case on the grounds that the evidence is insufficient to sustain a conviction" should have been granted. The fatal weakness of this assignment is that appellant, by failing to renew the motion for judgment of acquittal at the close of all of the evidence, did not preserve the question for review. So failing, appellant has foreclosed his right to have us consider the question of the sufficiency of the evidence to make a submissible case. Rule 29, Fed.R.Crim.P.; Cox v. United States, 8 Cir., 284 F.2d 704 (1960), cert. denied, 365 U.S. 863, 81 S.Ct. 831, 5 L.Ed. 825 (1961); McDonough v. United States, 8 Cir., 248 F.2d 725 (1957).

Neither does our careful review and consideration of the record disclose a plain error or defect affecting the substantial rights of appellant, and thereby allowing us to take cognizance of it even though not brought to the attention of the trial court. Rule 52(b), Fed.R. Crim.P. On the contrary, appellant's two basic contentions in his "insufficiency of the evidence" argument are clearly without merit.²

A brief résumé of the facts will assist in consideration of the alleged procedural errors relied upon as a basis for reversal.

The Government proved and appellant admitted that in 1949 he was convicted in the State of Oklahoma of committing an assault with a dangerous weapon. Such an assault is a crime of violence within the meaning of § 902(e). As to the second element of the offense — i. e., the transportation — the Government's evidence showed that on May 29, 1961, appellant, using the fictitious name of Clarence Hopper, and a fictitious address in Mobile, Alabama, purchased a .38 Caliber Agent Colt pistol from a hardware merchant in Summit, Mississippi. At the same time, appellant's companion, one Ray Wells, purchased a .38 Caliber Cobra pistol which was almost identical in appearance to the Colt purchased by appellant. The sales of both firearms, including the serial numbers of the weapons, were recorded by the merchant and the record of the sale to appellant was introduced in evidence. At about 3:00 o'clock a. m. on July 12, 1961, appellant was arrested in Mankato, Minnesota, and the pistol he had purchased in Summit, Mississippi, was removed from his person by the law-enforcing officers.

Appellant testified that he was a resident of Tulsa, Oklahoma, and was a dealer in used automobiles. His version of the transaction in Summit, Mississippi, coincides with the Government's evidence with one material difference. He testified that he purchased the .38 Caliber Cobra and that Wells purchased the .38 Colt which was described in the indictment. He stated that after the purchase of the weapons he and Wells remained together until they reached Jackson, Mississippi, where they separated; that pursuant to being contacted by Wells for the ostensible purpose of selling automobiles to him, appellant met Wells in Minneapolis, Minnesota, on July 11, the day prior to appellant's arrest in Mankato, Minnesota. Appellant admitted having the .38 Colt in his possession when he was arrested in Mankato, claiming that he had purchased it from Wells on the day before, asserting that Wells was in need of money and that appellant was able to buy the pistol at a bargain price.

During the trial, the Government attorney produced and had marked as an exhibit, a .45 caliber automatic weapon. Out of the hearing of the jury, the prosecutor advised the court that in addition to the .38 Colt allegedly transported, appellant also had upon his person at the time of his arrest, the .45 automatic, and contended that the latter weapon was properly admissible in evidence. After a colloquy between the Judge and the attorneys, the Judge ruled that the .45 was irrelevant to the offense being tried and not admissible in evidence. That terminated the discussion, and no further mention was made in regard to it.

But appellant contends that the presence of the .45 where it could be seen by the jury somehow caused the jury to be prejudiced against him, and that his motion for a mistrial should have been granted. We disagree. Even though the jury actually saw the weapon, we fail to comprehend how, in light of all the facts, this circumstance inflamed and prevented the jury from deciding the question of appellant's guilt or innocence on the relevant evidence and in accordance with the law.

Also without merit is the contention that the Government attorney engaged in making prejudicial remarks and extracting "prejudicial information" from witnesses. Appellant has ignored and failed to comply with our Rule 11(b) relating to contents of briefs, and which casts upon appellant the duty of quoting in his brief the evidence alleged to have been improperly introduced. Aside from a few brief quoted references — consisting mainly of four questions to which objections by appellant were sustained by the court, appellant merely directs us to examine various designated pages of the transcript for prejudicial remarks. We have overlooked this flagrant violation, and have combed the entire transcript in vain in search of the alleged prejudicial abuses by the Government attorney. While on a few occasions the Government attorney may have been a bit overzealous, in view of the court's action in sustaining appellant's objections — when made — to questions considered improper, the present general assignment is utterly groundless.

Likewise without substance is appellant's assertion that the court fell into error in failing as requested, to instruct that the "mere fact that the defendant had a fire-arm in his possession * * * does not presume that the defendant transported the weapon in interstate commerce." The court's charge, which is not challenged by appellant, correctly declared the law, required the jury to...