Gornick v. United States, 7301.

• Citation: 320 F.2d 325
• Decision Date: 15 July 1963
• Docket Number: No. 7301.,7301.
• Parties: James GORNICK, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

320 F.2d 325 (1963)

James GORNICK, Appellant, v. UNITED STATES of America, Appellee.

No. 7301.

United States Court of Appeals Tenth Circuit.

July 15, 1963.

David L. Wood, Fort Collins, Colo., for appellant.

Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

SETH, Circuit Judge.

The appellant was indicted upon two counts, the first count for an escape from the Honor Farm of the United States Penitentiary at Leavenworth, Kansas, in violation of 18 U.S.C. § 751, and the second count for assaulting with a deadly weapon a federal employee while in the performance of his official duties, in violation of 18 U.S.C. § 111. Appellant moved for separate trials on each of the two counts of the indictment and the motion was denied. The case was tried before a jury and the appellant was found not guilty on Count I and guilty on Count II. Appellant filed a motion for a new trial on Count II which was denied.

The record shows that the appellant had been convicted in 1957 upon a plea of guilty to bank robbery and was being confined at the time in question at the Honor Farm of the United States Penitentiary at Leavenworth, Kansas. On the night of June 9, 1961, the officials at the Honor Farm found that the appellant was not in the dormitory as required and began a search for him. Two prison officers found the appellant walking along a highway in the vicinity of, and in the direction of the Honor Farm. When they approached him they ordered him to enter the car and he did so. As they were returning to the prison in the car, one of the officers noticed that the appellant had a knife in his hand and a scuffle ensued during which the officer was disarmed and the appellant pointed the officer's pistol at the other officer who was driving the car and demanded that he "drive on." The driver however stopped the car and pointed his own pistol at the appellant, and told him to "lay the pistol down." The appellant did so, and he was returned and placed in confinement.

The appellant on this appeal urges that the trial court abused its discretion in not granting a severance and in not providing a separate trial for each of the two counts. He further urges that the trial court was in error in denying his motion for a judgment of acquittal because there was insufficient evidence to establish the elements of the offense of assault in that fear and apprehension on the part of the victim are material elements of the crime, and there was no evidence of such fear and apprehension. Further errors are urged in the charge and in the trial court's failure to grant appellant's motion to suppress certain testimony.

Rule 8(a) of the Federal Rules of Criminal Procedure provides that offenses may be charged in the same indictment if the acts or transactions are "connected together." The matter of motions for severance is covered by Rule 14 which provides in part that if it appears that a defendant or the government is prejudiced by the joinder of offenses, the court may order an election or separate trials. Both the parties concede that the granting of separate trials or severance is a matter of discretion for the trial court. The action of the trial court will not be reversed except for clear abuse of discretion. Dauer v. United States, 189 F.2d 343 (10th Cir.); Dennis v. United States, 302 F.2d 5 (10th Cir.). We do not believe that there has been any showing of prejudice to the...