Fuller v. United States
Decision Date | 05 November 1948 |
Docket Number | No. 11612.,11612. |
Citation | 170 F.2d 515 |
Parties | FULLER v. UNITED STATES. |
Court | U.S. Court of Appeals — Ninth Circuit |
Harold J. Butcher and George B. Grigsby, both of Anchorage, Alaska, for appellant.
Raymond E. Plummer, U. S. Atty., and J. Earl Cooper, Asst. U. S. Atty., both of Anchorage, Alaska, for appellee.
Before MATHEWS, HEALY, and ORR, Circuit judges.
Appellant, Almond G. Fuller, killed his mistress, Jean Mackey, at Anchorage, Alaska, on July 19, 1946. He was indicted for murder in the second degree,1 was arraigned, pleaded not guilty and was tried. At the trial, 14 witnesses testified, and 17 exhibits were admitted in evidence. Appellant moved the court to instruct the jury to find him not guilty of murder in the second degree. The motion was denied. Appellant was found guilty of murder in the second degree, and judgment was entered sentencing him to be imprisoned for 24 years. This appeal is from that judgment.
Three alleged errors are specified — the admission of exhibits 1 and 2, the admission of exhibit 13 and the denial of the motion to instruct the jury to find appellant not guilty of murder in the second degree.
First. Exhibits 1 and 2 are not before us. They were not designated for inclusion, and were not included, in the record on appeal.2 They were not transmitted, nor has appellant sought to have them transmitted, to this court.3 However, from the testimony in the record, it appears that exhibits 1 and 2 were photographs of Jean Mackey's dead body. Appellant's objection to their admission was that they were "calculated to arouse the passion and prejudice of the jury." The record discloses no basis for the objection.
Second. Exhibit 13, a written statement signed by appellant on August 2, 1946, was admitted in evidence without objection.4 Appellant's brief calls exhibit 13 an involuntary confession. It was not a confession. It did, however, contain admissions tending to incriminate appellant.5 As to whether it was voluntary or involuntary, the evidence was conflicting. The court submitted the question to the jury in and by the following instructions:
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Rivers v. United States
...and that this court could not say that any prejudicial effect therefrom outweighed their probative value. See also, Fuller v. United States, 9 Cir., 170 F.2d 515, 516. In the recent case of State v. Griffith, 52 Wash.2d 721, 328 P.2d 897, 900, the court answered a contention similar to the ......