Jones v. United States, 18981.

• Decision Date: 16 July 1968
• Docket Number: No. 18981.,18981.
• Citation: 396 F.2d 66
• Parties: James Millard JONES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

396 F.2d 66 (1968)

James Millard JONES, Appellant, v. UNITED STATES of America, Appellee.

No. 18981.

United States Court of Appeals Eighth Circuit.

May 31, 1968.

Rehearing Denied July 16, 1968.

F. James Bradley, Cedar Rapids, Iowa, for appellant.

Asher E. Schroeder, U. S. Atty., Sioux City, Iowa, for appellee.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and LAY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This is a timely appeal in forma pauperis by the defendant, James Millard Jones, from a jury verdict of guilty and the resulting sentence on each count of a four count indictment, charging respectively violations of 18 U.S.C.A. § 2113 (a), (b), (d) and (e), all arising out of the robbery of the Urbana Savings Bank, Urbana, Iowa, on January 19, 1967. Concurrent sentences were imposed as follows: Count I, fifteen years; Count II, seven years; Count III, twenty years and Count IV, fifty years.

Inasmuch as the sentences on Counts I, II and III are vacated for reasons hereinafter set out, we are directly concerned only with the validity of the conviction on Count IV. Such count charges that the defendant while committing the acts charged in Counts I and II, in violation of 18 U.S.C.A. § 2113(a) and (b) respectively, did force Mrs. Bonnie Richart to accompany him without the consent of Mrs. Bonnie Richart from the Urbana Savings Bank, Urbana, Iowa, to Waterloo, Iowa, in violation of 18 U.S.C. § 2113(e). Counts I and II are made a part of Count IV by reference.

Defendant upon this appeal does not challenge the sufficiency of the evidence to support his conviction upon any count. Our examination of the record satisfies us that there is ample evidence to support a conviction upon each count. No purpose will be served by discussing the evidence in detail.

Defendant's assignment of errors relied upon for reversal are summarized as follows:

I. Instruction No. 7 fails to define certain terms, fails to set out the essential elements of the crime charged, and varies from the crime charged.

II. Counts I, III and IV are defective because they vary materially from the statutory language and they are also duplicitous.

III. The court commented on defendant's right not to testify absent a request from the defendant for such instruction.

IV. The court failed to give sua sponte a cautionary instruction concerning the use of defendant's admissions.

V. The court failed to give a requested instruction on the credibility of informers.

VI. The court erred in pronouncing separate sentences on each count.

VII. The sentence on Count IV is excessive.

A careful study of the record satisfies us that defendant has failed to establish that the court has committed any prejudicial error. The errors urged will be discussed in the order hereinabove set out.

I to IV.

The first four points raised by defendant will be considered together for the reason that none of the questions raised in such points were raised in the trial court in any manner. Rule 30, Fed. R.Crim.P., provides in part: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

In Petschl v. United States, 8 Cir., 369 F.2d 769, 773, we held:

"The proper foundation for establishing a basis for questioning the applicable law as stated by the court in its instructions is by request for instruction or exceptions to instructions given. Absent such foundation, asserted errors in instructions are not entitled to consideration upon appeal absent a Rule 52(b) plain error situation."

With respect to the applicability of the Rule 52 plain error rule, we said:

"The Rules of Criminal Procedure provide a fair and orderly plan for the administration of criminal justice and ordinarily the rules therein set forth for the preservation of error for review should be observed. We have frequently held that resort to the plain error rule is appropriate only in exceptional cases where such course is necessary to prevent a miscarriage of justice."

We have carefully considered the instructions as a whole and are satisfied that they fairly set out the essential elements of the offenses charged. We are convinced that none of the errors directed to the instructions reach the status of recognizable plain error. If defendant desires elaboration of the instructions given, appropriate request for additional instructions or exceptions should have been taken to the instructions given.

Defendant's attack upon the indictment lacks merit. The indictment adequately informs the defendant of the offenses charged. Absent unusual circumstances, the sufficiency of an indictment is not open to collateral attack. Smith v. United States, 8 Cir., 356 F.2d 868, 872.

The asserted errors covered by points I to IV fall far short of affording a basis for determination that the asserted errors lead to a miscarriage of justice.

V.

Defendant made an oral request that the jury be instructed that there had been certain testimony given by informers and that the jury be instructed as to the weight and credibility to be placed upon such testimony. The court denied such instruction, citing the Seventh Circuit Manual on Jury Instructions, 33 F.R.D. 525, 579-580. The court held that there is no evidence to establish that the so-called informers received pay, immunity from punishment, personal advantage or vindication. No abuse of discretion or prejudicial error was committed in refusing the requested instruction.

Rote and Murray, prisoners in the jail where defendant was confined, each testified that defendant made voluntary statements while in jail implicating him in the crime here charged. Neither witness had any contact relating to this case with anyone representing the government prior to their hearing of the admissions. As found by the trial court, there is a complete absence of any evidence of any pay or promise of any kind made to the witnesses in return for their testimony. Such witnesses do not appear to fall in the category of informers as such term is usually used. They merely happened to be at the place where defendant was incarcerated at a time he chose to make a voluntary statement.

Whether an informer instruction should be given rests largely in the discretion of the trial court. United States v. Hoffa, 6 Cir., 349 F.2d 20, 52; Siglar v. United States, 5 Cir., 208 F.2d 865, 867.

The presence of substantial independent evidence in support of defendant's guilt is a factor entitled to considerable weight in determining whether the court abused its discretion in refusing an informer instruction. See United States v....