Juelich v. United States, 14900.

• Decision Date: 12 August 1954
• Docket Number: No. 14900.,14900.
• Citation: 214 F.2d 950
• Parties: JUELICH v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

214 F.2d 950 (1954)

JUELICH v. UNITED STATES.

No. 14900.

United States Court of Appeals, Fifth Circuit.

August 12, 1954.

Frank M. Gleason, Rossville, Ga., for appellant.

James W. Dorsey, U. S. Atty., and H. H. Tysinger, Asst. U. S. Atty., Atlanta, Ga., J. Robert Sparks, Asst. U. S. Atty., Greenville, Ga., John W. Stokes, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and RICE, District Judge.

RICE, District Judge.

This is an appeal by Herbert Eugene Juelich from a death sentence imposed upon him by the District Court of the United States for the Northern District of Georgia.

Juelich and Larson were, on August 25, 1953, jointly indicted in the Rome Division of said court, and therein charged with shooting and murdering, on August 8, 1953, in said division of said court, Samuel E. Vaughn, who was then known to the defendants to be a Deputy United States Marshal, on account of and while in the performance of his official duties. The defendants were tried to the same jury, and the latter, in finding defendant Larson guilty, recommended mercy; whereupon he was sentenced to life imprisonment and does not appeal. The jury, in finding Juelich guilty of murder in the first degree, did not recommend mercy and he was given a death sentence.

Prior to September 8, 1953, the court appointed two members of the Georgia Bar to represent defendant Juelich (who will be hereafter referred to as defendant) and on said last mentioned date defendant was arraigned and plead not guilty to the charge set forth in the indictment.

Thereafter defendant presented to the court a number of motions, several of which are hereinafter set forth, each of which was by the court denied:

(1) For change of venue because prejudicial publicity throughout the Northern District of Georgia rendered it impossible for him to secure a fair trial in the Rome Division of said Northern District of Georgia.

(2) In the alternative should the court overrule the motion for change of venue, a motion that the cause be continued for a sufficient period of time to permit public opinion to subside.

(3) In the alternative, that the judge try the case without a jury.

(4) A challenge to the array of the entire panel of jurors (with the exception of two) after they were questioned on voir dire, for the reason that each member of the panel had shown himself disqualified.

(5) To continue the case so as to have a jury drawn not prejudiced by the highly prejudicial news items and radio broadcasts. This motion was made after examination of the jurors on voir dire.

(6) A challenge to the poll of each individual juror.

Defendant's motion for change of venue came on for hearing in November, 1953, before the court then sitting in Atlanta, Georgia. The defendant was not present, and his counsel objected to proceeding with the hearing in the absence of defendant, taking the position that under the provisions of Rule 43 of the Federal Rules of Criminal Procedure the presence of their client was required by law. The trial court required the hearing to proceed for the remainder of that day, but the defendant was produced and was present the next day and during the remainder of the hearing. Defendant takes the position that the trial court committed reversible error in not permitting him to be present throughout the hearing on his motion for change of venue.

Defendant's court appointed counsel ably represented their client at every step of the way, with highly commendable zeal and earnestness, and here urge many assignments, contending in reference to each that reversible error is shown. Several of these assignments present interesting questions of law which will not be discussed or further alluded to in this opinion because we have reached the conclusion that this case must be reversed because defendant was forced to trial before a jury, every member of which admitted he had an opinion that the defendant was guilty, and the trial court committed reversible error in holding the members of the jury were qualified.

It is uncontradicted that on August 8, 1953, Juelich, and Larson were being transported by automobile from Nashville, Tennessee, to the Federal Penitentiary at Atlanta, Georgia, to serve terms of five years imprisonment after having been convicted in a Federal Court at Nashville, Tennessee, for the commission of an offense against the laws of the United States.

These prisoners were in the custody of Deputy United States Marshal Vaughn, who had with him a guard, a man by the name of Hightower. The two officers were seated in the front seat of the car, the two prisoners, handcuffed and shackled, were on the back seat. After they had entered the State of Georgia, and while Vaughn was driving at high speed, according to Hightower, Juelich, who in some manner had removed his handcuffs, reached over the front and grabbed Vaughn's gun. Larson joined in the scuffle and the car proceeded down the highway driverless at a high rate of speed. Juelich got Vaughn's gun; Hightower grabbed the steering wheel and brought the car to a stop; Vaughn reached for the door handle; then three shots sounded and Vaughn fell out of the car. The two convicts disarmed Hightower and made him a prisoner. The three concealed themselves in the woods until they were found about four days later by members of the Georgia National Guard. These happenings occurred not far from Rome, Georgia, the place where Juelich and Larson were later put on trial.

A farmer living near the scene of the shooting saw the officer's car proceeding down the highway at a fast rate of speed, apparently out of control; it was then brought under control and stopped. He approached within a short distance when three shots rang out and a body rolled out upon the highway. The car then proceeded down the highway and he went to the man lying in the highway. Others stopped, an ambulance was summoned, but Vaughn lived only a short time.

The alarm was immediately sounded; road blocks were set; blood hounds put upon the trail; a unit of the Georgia National Guard was put in the field; members of the Federal Bureau of Investigation, of the State Police, many peace officers and armed citizens took up the man hunt, aided by airplanes. The armed officers went from house to house and the countryside was finely combed for four days before the defendants were captured.

The newspapers throughout the area carried lurid banner headlines and stories of the event. The same was true as to the broadcasts over the radio and television. The prisoners were referred to as outlaws, desperados, killers, and murderers; it was stated that Juelich had a long record; that Juelich had confessed to the Federal Bureau of Investigation; and the countryside was warned that they were armed and were dangerous. By the press, the radio, and by television the public was kept constantly informed as to the progress of the "man hunt" in language calculated to inflame.

Proof of the foregoing was made in the motion for change of venue, and was further developed in the interrogation of the members of the jury panel. The court overruled the motion for change of venue when the jury was selected.

From the record it appears that eighty-one jurors composed the panel in this case. Of these, ten were excused; fifty-one testified they were of the opinion that both defendants were engaged in killing the officer; twelve were of the opinion that either or both were guilty; two were of the opinion that Juelich was the guilty party; while six had no opinion.

Each of the twelve jurors empaneled to try the defendant testified on voir dire examination that from reading the newspapers, listening to newscasts over the radio and television, or discussions, he had formed an opinion that the defendant was guilty. A short résumé of the testimony of each of the jurors is set out below:

1. Walter T. Slaughter testified that he had an opinion, but it was not a crystalized opinion which would be conclusive, that one or both of the defendants killed the Deputy Marshal. He had no fixed opinion as to whether they murdered him, but did have a definite opinion as to the killing; that proof of their innocence would cause him to acquit them. He understood the burden would lie on the government to prove defendants guilty and that the defendants did not have the burden of proving their innocence.

2. R. Haynes Wicker testified that he had formed the opinion that one or both of the prisoners killed the officer and that nothing had happened since that time to change his opinion. If selected as a juror he would enter upon his service with the opinion that one or the other of the defendants actually killed the officer. He understood the meaning of the word "murder" and would enter the jury box with the opinion that one or the other of the defendants was guilty of the offense of murder; that notwithstanding his present belief that one or both of the defendants were guilty of murder, proof of their innocence made in court would cause him to acquit them. He understood that the burden would be on the government to prove by evidence on the trial whether the defendants were guilty or not, and that the defendants did not have the burden of proving their innocence. He thought he could go into the jury box with a fair mind, listen to the evidence and base his verdict upon the evidence. He believed he could exclude any opinion that he had arrived at in reaching a verdict.

3. Clarence H. Murphy assumed from what he had heard and read that one or both of the defendants killed the officer. He understood the meaning of the word "murder" and as far as he knew he would call the killing of the officer murder. If accepted as a juror he would enter upon his service with the opinion that one or both of the defendants were guilty of the offense of murdering Mr. Vaughn unless evidence came up otherwise; that if proof of the defendants'...