Jones v. United States
| Decision Date | 08 February 1962 |
| Docket Number | No. 6874.,6874. |
| Citation | 299 F.2d 661 |
| Parties | Donald David JONES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
R. R. Linker, Tulsa, Okl., for appellant.
Phillips Breckinridge, Tulsa, Okl. (John M. Imel, U. S. Atty., Tulsa, Okl., was with him on the brief), for appellee.
Before PICKETT, LEWIS and HILL, Circuit Judges.
Appellant was convicted upon six counts of an indictment charging the unlawful trafficking in narcotics. 26 U. S.C.A. § 4704(a, b). This court has earlier considered the appellate contentions of two of appellant's codefendants, McMurray and Bryson, and has affirmed the several judgments of conviction. McMurray v. United States (Bryson v. United States), 298 F.2d 619. The instant appeal, perfected pro se, presents three additional claims of error in the trial below. Each claim is raised for the first time on appeal. It is now urged that the trial court erred in not instructing upon entrapment; that the trial court evinced bias by admitting incompetent evidence; and that the record does not affirmatively show that appellant was present at one stage of the trial proceedings.
Appellant's first and second contentions are completely without merit and require no detailed discussion. The record indicates no issue of entrapment nor bias upon the part of the trial judge in any way. Appellant's third contention, however, points out an imperfection in the proceedings below and requires consideration by this court even though the trial court was given no opportunity by motion for new trial or otherwise to consider the claim of error.
The record affirmatively shows that appellant and his counsel were present at every stage of the trial up to and including the giving of instructions to the jury on the afternoon of February 8, 1961. The jury was unable to arrive at a verdict upon that date, was excused over night, and reconvened on February 9. At 9:15 a. m., at the jury's request, the court gave further instructions in the case. Appellant and his counsel were then present. At 11:05 a. m. the jury again returned and a juror asked a question bearing upon the instructions. The court answered the inquiry. The record does not affirmatively show that appellant was then present but does indicate that his counsel was present.1 At 11:40 a. m. the jury reached and returned its verdict. Both appellant and his counsel were present.
The most that can be said for appellant's contention is that the record does not affirmatively show complete compliance with the provisions of Rule 43, Fed.Rules of Crim.Proc., 18 U.S.C.A. But upon such showing there is no additional burden of showing actual prejudice and, indeed, the absence of a defendant during the course of criminal proceedings can carry constitutional overtones. Fina v. United States, 10 Cir., 46 F.2d 643; Little v. United States, 10 Cir., 73 F.2d 861. Cf. Snyder v. Com. of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674. And we can let stand no conviction where the...
To continue reading
Request your trial
-
Pope v. United States
...of Rule 43, and even if it were, the record negates any reasonable possibility of prejudice to petitioner. Jones v. United States, 299 F.2d 661 (10th Cir. 1962), cert. denied, 371 U.S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101, rehearing denied, 371 U.S. 931, 83 S.Ct. 294, 9 L.Ed.2d 239. In regard t......
-
State v. Garcia
...of prejudice from the error. See 3A Wright, Federal Practice and Procedure: Criminal 2d § 724, p. 31 (1982); Jones v. United States, 299 F.2d 661, 662 (10th Cir.), cert. denied 371 U.S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101 (1962). This court has held that in applying the harmless error rule in ......
-
Brown v. State, s. 302
...any prejudice to appellant's cause being occasioned by his absence. We find no reversible error in his absence. Jones v. United States, supra (299 F.2d 661 (10 Cir.)).' 451 F.2d at In United States v. Sinclair, 438 F.2d 50 (5th Cir. 1971), the trial court excused the jury and conferred with......
-
Houser v. U.S.
...States, 313 F.2d 518, 522 (9th Cir. 1962), cert. denied, 373 U.S. 918, 83 S.Ct. 1307, 10 L.Ed.2d 417 (1963). But cf. Jones v. United States, 299 F.2d 661 (10th Cir.), cert. denied, 371 U.S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101 (1962).45 Zachary v. United States, 275 F.2d 793, 796 (6th Cir.), ce......