Kahla v. United States, 16315.

• Decision Date: 13 June 1957
• Docket Number: No. 16315.,16315.
• Parties: Vernon KAHLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

243 F.2d 128 (1957)

Vernon KAHLA, Appellant, v. UNITED STATES of America, Appellee.

No. 16315.

United States Court of Appeals Fifth Circuit.

April 12, 1957.

Rehearing Denied June 13, 1957.

Bernard A. Golding, Houston, Tex., for appellant.

Gordon J. Kroll, Asst. U. S. Atty., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.

HUTCHESON, Chief Judge.

Tried to a jury for, and convicted of, unlawful sale and possession of migratory game birds, defendant has appealed on a record devoid of objection or exception to any ruling of the trial court.

Realizing the heavy burden placed upon him, appellant, appearing here through different counsel from those he had below, invokes the well settled principle, that, though no motion for a directed verdict was made and no exception of any kind was taken and preserved below, where the records shows fundamental errors affecting the constitutional right of a trial by jury, they may, indeed must, be relieved against.

The fundamental errors thus claimed are: (1) that the court failed to fully and adequately instruct the jury on the law of the case; and (2) the government failed to prove by clear, convincing, and unequivocal evidence the essential ingredients of the offenses charged, and the evidence was insufficient to sustain the conviction.

Pointing, in support of his first ground, to the fact that the charge of the court did not set out in full or in substance the statute under which the informations were filed, nor did it instruct the jury as to the elements of the offenses therein charged, appellant urges upon us that, by stating to the jury that the only disputed issue in the case was whether the defendant had been entrapped into committing the offenses charged, the court denied the defendant a trial by jury and, invading its province, in effect instructed a verdict against him.

In support of his second ground, he insists that the record will be searched in vain for competent proof that the birds were migratory and that he committed the offenses charged.

On its part, the United States, in reply to the contentions that the evidence was insufficient to support the verdict and judgment of guilty, insists that not only is the government's evidence of the defendant's guilt overwhelming, but the defendant himself, taking the stand and admitting the possessions and sales as charged and found, based his defense solely and entirely upon the...