Fitts v. United States, 7761.
| Decision Date | 12 August 1964 |
| Docket Number | No. 7761.,7761. |
| Citation | 335 F.2d 1021 |
| Parties | John Thomas FITTS, Appellant v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles R. Fredrickson, Denver, Colo., for appellant.
Melvin Gradert, Asst. U. S. Atty., (Newell A. George, U. S. Atty., was with him on the brief) for appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
For the third time in less than four years appellant John Thomas Fitts is before us on an appeal from a conviction of a violation of the Dyer Act.1 The first case arose in Colorado;2 the second in the Western District of Oklahoma;3 and the present in Kansas. The three cases have one point in common, the defense of insanity. The current appeal is from a jury verdict of guilty and a sentence of four years to run concurrently with the sentence imposed in the Western District of Oklahoma.
A narration of the evidence is unnecessary. The record sustains the verdict.
Aware of Fitts' previous bouts with the law and his claims of mental incompetency, the prosecution complied with the law of this circuit and undertook the burden of proving that Fitts was mentally competent.4 The instructions of the court are attacked on the ground that they fail to meet the requirements of the test of criminal responsibility announced in Wion v. United States, 10 Cir., 325 F.2d 420, 430. Although the instructions do not follow the exact language of Wion, they adequately cover the principles there stated and present no reason for reversal.
Objection is also made to a portion of the instructions relating to knowledge of the accused. The attacked language says that if the jury finds that the defendant believed he owned an interest in the automobile and believed that he had the right to possession, then he should not be convicted.5 Counsel argues that the disjunctive "or" should have been used in place of the conjunctive "and," because the accused might not believe that he owned the car and yet believe that he had a right of possession. We do not approve this instruction but, in the circumstances of this case, it was not prejudicial error. The instructions given must be considered as a whole.6 Particular portions should not be separated and considered apart from the whole.7 Here counsel has singled out and emphasized one particular statement of the trial court. The instructions taken as a whole adequately covered all elements of the crime, including the knowledge of the...
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