Horton v. United States, 13321

• Decision Date: 12 June 1958
• Docket Number: No. 13321,13322.,13321
• Citation: 256 F.2d 138
• Parties: James H. HORTON, Appellant, v. UNITED STATES of America, Appellee. Clinton E. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

256 F.2d 138 (1958)

James H. HORTON, Appellant, v. UNITED STATES of America, Appellee.

Clinton E. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 13321, 13322.

United States Court of Appeals Sixth Circuit.

June 12, 1958.

William E. Badgett, Knoxville, Tenn. (John R. Todd, Kingsport, Tenn., on the brief), for appellants.

John F. Dugger, Asst. U. S. Atty., Knoxville, Tenn. (John C. Crawford, Jr., and James M. Meek, Knoxville, Tenn., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

SIMONS, Chief Judge.

On November 4, 1956, while a strike was in progress by the employees of the Blue Ridge Glass Corporation, a portion of track of the Clinchfield Railroad Company, leading to the plant of the employer, and concededly a highway of interstate commerce, was blown up by dynamite. The appellants and a striker named Million were indicted on two counts, one for conspiring to blow up the track and one for the substantive offense. Million pleaded guilty and was the principal witness for the United States at the trial. The jury returned a verdict of guilty on both counts against appellant Horton and on the conspiracy count alone against appellant Johnson, acquitting Johnson of guilt for the substantive offense.

Subsequently, the appellants discovered that all members of the jury panel had been given the "Handbook for Jurors Serving in the United States District Courts". Based on this discovery, appellants moved for a new trial on the ground of newly discovered evidence and upon a denial of their motion they perfected their appeals. The question based upon the handbook is the important question in the case, was vigorously presented both on briefs and in oral argument and will be disposed of after a consideration of procedural issues involved.

In support of the indictment, Million testified that on November 2, 1956 he agreed with appellant Horton that they would blow up the railroad to prevent delivery of supplies to the Blue Ridge Glass Company; that he had some dynamite which he had received from appellant Johnson some ten days before; that while this dynamite was not used in the blowing up of the track because he lacked caps and fuse, he went to Johnson to get them, intending to use the dynamite previously obtained from Johnson in the commission of the crime, that he obtained the caps and the fuse on November 2d, at which time Johnson furnished him with another package of dynamite and that this was the dynamite used in the explosion of the railroad track. He testified that when he went to Johnson to obtain the caps and fuse he told him that he and Horton were going to use the dynamite in the blowing up of the railroad. The dynamite first received by Million was concealed in some bushes on the property of a neighbor, Mrs. McCurry. The dynamite obtained on Friday before the crime was also concealed on Mrs. McCurry's property but in a different place than the other explosive. He met Horton on Saturday, November 3d, and was told by Horton that he would be unable to meet him that night to blow up the track. Arrangements were then made for Horton to meet Million on Sunday evening to accomplish their purpose. At a prearranged signal of three blasts on an automobile horn Million left his home Sunday evening, put the dynamite, caps and fuse in his truck and drove off, with Horton following in his own car. Soon after leaving his home, Million stopped, took the dynamite to Horton's car in which both proceeded to the railroad track where they set the dynamite and blew up the track. While in Horton's car, beating a hasty retreat, Horton discovered that Million had not worn gloves and because they feared that Million's fingerprints would be on the fuse, they returned, picked up the burned fuse and again hastily retreated. Horton returned Million to his truck and Million went on picket duty in the early morning of November 5th. Following picket duty, Million returned to his home, took the burned fuse to his neighbor's property and concealed it, as he had the first package of dynamite.

To a somewhat limited but important extent, Million's narrative was corroborated. His eleven year old daughter heard three "toots" on an automobile horn just before her father left on Sunday evening, November 4. Mrs. McCurry found the burned fuse on her property at the place where Million said he had thrown it several days after the blowing up of the track. Witness Shupe testified that later he received a package of dynamite from Million. Shupe had gone to Million for the dynamite, at the request of a railroad detective Peterson. Peterson testified that he received this package from Shupe in November or December, 1956, and identified its wrappings. Mrs. McCurry had given him twenty eight feet of burned fuse on the 8th or 10th of November which Peterson delivered to the FBI Agent, Barrett. Barrett's testimony was that he had measured with his speedometer the distance from Horton's home to Million's home, from Million's home to the scene of the explosion, and that the time required in traveling between these points corroborated Million's testimony as to their movements on the night of the crime.

Both appellants gave evidence denying connection either with the substantive offense or the conspiracy. Horton swore that at the time of the crime he was visiting his brother-in-law and family and Horton's ten year old daughter supported this alibi. Johnson testified that he had furnished dynamite to Million upon only one occasion, about ten days prior to the blowing up of the track; that it was to be used in coal mining operations; that the package of dynamite contained caps and fuse. Both appellants put their own reputations in issue and attacked Million as a man of poor character and reputation.

The procedural errors relied upon in the appeal related to the admission of testimony that Million gave dynamite to Shupe more than a week after the crime; that on cross examination of Johnson, the district attorney observed that the testimony of the appellants was "wind" and remarked that he "would not give a nickel for a dozen of them," in reference to Horton's offer to take a lie detector test; that error was committed in the cross examination of character witnesses when they were asked if they knew of a series of convictions for drunkenness and appellant Horton's contention that certain rebuttal testimony was inadmissible because a proper foundation for impeaching testimony was not laid.

Shupe's testimony that Million gave him dynamite more than a week after the crime was, doubtless, irrelevant and should not have been received if proper timely objection thereto had been urged. The admission of the tape which bound the dynamite, previously referred to, was objected to but only after all the testimony concerning this particular dynamite was received without objection. We are not persuaded that the admission of Shupe's testimony in this regard constitutes such plain error as calling for reversal under Rule 52 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The observations made by the district...