Jones v. United States
Decision Date | 12 July 1962 |
Docket Number | No. 16736.,16736. |
Parties | Charles M. JONES, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Joseph A. Lowther, Asst. U. S. Atty., were on the brief for appellee. Mr. Arnold T. Aikens, Asst. U. S. Atty., also entered an appearance for appellee.
Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.
Appellant was convicted of robbing a hotel clerk. The episode occurred about 4:30 A.M. on November 25, 1960. He argues first that police arrested him without probable cause, and on that account, a photograph of him taken at a "line-up" and testimony concerning it were improperly received in evidence. But appellant's trial counsel (who is not his present counsel) did not object to the introduction of this evidence, and its admission certainly cannot be considered plain error affecting substantial rights.1 Accordingly, as the matter was not raised at the trial, we decline to review it here. Crawford v. United States, 91 U.S.App.D.C. 234, 237, 198 F.2d 976, 979 (1952); Lawson v. United States, 101 U.S.App.D.C. 332, 338, 248 F.2d 654, 660 (1957).
Conflicting testimony gave rise to the appellant's next argument as to the sufficiency of the evidence. That the jury might have rejected as quite incredible the appellant's purported explanations and his claim of alibi is readily discernible from the transcript. In any event, we had here a genuine issue of fact, the resolution of which presented a typical jury problem, coming squarely within the rule of Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) and Curley v. United States, 81 U.S.App. D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The trial judge did not err in denying appellant's motion for acquittal.
Appellant's next point involves a claim of inadequacy in the charge. His trial counsel pointed out in argument that the "crux of this case, ladies and gentlemen, is the identification." Both counsel at length discussed the issue, and in great detail. We are satisfied that the jury could not have mistakenly evaluated the importance of the only real question in the case, for the judge's instructions almost immediately followed the closing arguments. Appellant's trial counsel must have reached a like appraisal. He was asked, when the judge concluded, "Do you request any further charge?" "No, Your Honor." "Do you have any objection to the charge as given?" "No, Your Honor."
After instructing the jury as to the elements of the offense, the judge charged that the jury was to presume the innocence of the accused and that the presumption was to remain with him "until the Government removes it by proving beyond a reasonable doubt that he committed all of the elements of the offense with which he is charged." He added, explaining the application of the principle of "reasonable doubt":
"If after a fair and impartial comparison and consideration of all of the evidence in the case, that is, the evidence offered by the Government, the evidence offered by the Defendant, and his witnesses, you can truthfully say to yourselves that you are not convinced of the Defendant\'s guilt, then you have a reasonable doubt and, of course, your verdict should be, not guilty."
Continuing, he instructed:
We are persuaded, viewing the charge as a whole, that the jury could not have failed to understand that its task was to decide whether or not Jones was in fact the man who had held up the hotel clerk.2 Moreover, there were no requests for special instructions. Fed. R.Crim.P. 30, 18 U.S.C.A., is explicit. "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." (Emphasis added.)
Appellant had testified to a larceny conviction in North Carolina. He now complains that the judge in sentencing him also took into account criminal charges which had not predicated convictions. But Fed.R.Crim.P. 32(c) (2) expressly provides for a presentence report to the court which may consider "such information" about the characteristics of the accused as may be helpful in imposing sentence. Cf. Williams v. New York, 337 U.S. 241, 244, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). The sentence imposed was within lawful limits.
We find no error requiring reversal.3
Affirmed.
I agree that the appellant was not entitled to a directed verdict but I think he should have a new trial.
William E. Gee, a night clerk at the Whitelaw Hotel, was robbed on November 25, 1960. Only one man was involved in the offense. It is not disputed that appellant Jones, and also a man named Hastings, entered and left the lobby shortly before the robbery. The prosecution contended that Jones returned and robbed Gee. The defense suggested that Hastings did. Appellant Jones has been convicted of the robbery.
Gee testified that Jones was the robber. So did one eyewitness, Fudge. Another eyewitness, Knight, testified that the robber was not Jones, but a taller man, about five feet eight. Jones testified without dispute that Hastings was about five feet seven or eight and that Jones himself was five feet two, or five feet three in shoes. All three of the witnesses who saw the robbery were in approximate agreement about the height of the robber. One said he was about five feet seven, one said five feet six or six and a...
To continue reading
Request your trial-
United States v. Benlizar
...sentence, the trial judge may consider evidence of other crimes for which the defendant was not convicted); Jones v. United States, 113 U.S.App.D.C. 233, 307 F.2d 190 (1962), cert. denied, 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963) (pre-sentence report may include, and the judge may c......
-
Com. v. LeBlanc
...443 F.2d 986, 990--991 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971). See Jones v. United States, 113 U.S.App.D.C. 233, 307 F.2d 190, 192 (1962), cert. denied, 372 U.S. 919 (1963); Young v. United States, 259 F.2d 641, 646 (8th Cir. 1958), cert. denied, 359 U.S. ......
-
People v. Lee, 2
...in the presentence report, at least where the defendant does not challenge information in the report. See Jones v. United States, 113 U.S.App.D.C. 233, 235, 307 F.2d 190, 192 (1962); Neely v. State, 47 Wis.2d 330, 177 N.W.2d 79 (1970); State v. Ferbert, N.H., 306 A.2d 202, 204 (1973); 'Cour......
-
State v. Green
...84, 87 (N.D.Sup.Ct.1962); State v. Caddell, 265 N.C. 563, 144 S.E.2d 621, 622 (Sup.Ct.1965) (per curiam); Jones v. United States, 113 U.S.App.D.C. 233, 307 F.2d 190, 192 (D.C.Cir.1962), cert. den. 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963).5 Taylor v. United States, 179 F.2d 640, 642-......