Lake v. United States

• Decision Date: 26 April 1962
• Docket Number: No. 16680.,16680.
• Parties: James Austin LAKE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

302 F.2d 452 (1962)

James Austin LAKE, Appellant, v. UNITED STATES of America, Appellee.

No. 16680.

United States Court of Appeals Eighth Circuit.

April 26, 1962.

Jerome Raskas, of Caruthers & Montrey, St. Louis, Mo., for appellant and filed brief.

John J. Connelly, Asst. U. S. Atty., St. Paul, Minn., made argument for appellee and Miles W. Lord, U. S. Atty., St. Paul, Minn., was with him on the brief.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment of conviction on two counts of a four-count indictment, separately charging appellant in count 1 thereof with unlawfully transferring 4.3 grams of marihuana on September 17, 1959, not in pursuance of a written order for that purpose as provided in Section 4742, Title 26 U.S.C.A.; and, in count 2, without having paid the transfer tax in respect to that transaction as imposed under Section 4741, Title 26 U.S.C.A., in violation of Title 26 U.S.C.A. § 4744. Counts 3 and 4 of the indictment charged similar transactions and offenses by defendant in the transfer of nineteen (19) marihuana cigarettes on September 14, 1959. As to the latter-mentioned counts, the jury acquitted appellant of those charges.

The sufficiency of the evidence to sustain appellant's conviction on counts 1 and 2 infra is not challenged in this appeal. Hence a detailed statement of facts is not essential here. We have read the record of appellant's trial and are fully convinced that substantial evidence was adduced to sustain the verdicts of guilty as found by the Jury.

Appellant's assignments of error seeking reversal of his conviction and sentence are wholly procedural: (I) that the Court erred by instructing the Jury as to the demoralizing nature of marihuana and the Government's efforts to stamp out traffic therein by employment of officers who, in their efforts to do so, "are entitled to credit for their loyalty and integrity"; (II) that the trial court erred in receiving in evidence over the objection of appellant a photograph which displayed him in a furtive position; (III) that the Court erred in failing to declare a mistrial when Government counsel improperly commented on appellant's failure to testify; and (IV) appellant was denied a fair trial because of hostile and prejudiced conduct of the trial court toward him. From our examination of the record we can find no prejudicial error existing in respect to any of such assignments.

I. The trial court, in the course of its instruction, told the Jury:

"Marihuana is a vicious, demoralizing substance that robs a person of morality, honor, integrity, decency, and all the virtues that are the foundation of good character and good citizenship. The Government is constantly engaged in an effort to stamp out traffic in this and in narcotic drugs. Officers of the Government are employed in this effort usually and are entitled to credit for their loyalty and integrity."

At the trial counsel employed by defendant stated an objection to that portion of the Court's charge as follows: "The defendant also excepts to the instruction of what marihuana is and the effects that it has on an individual." No objection was lodged to that portion of the above statement as to the "loyalty and integrity" of officers of the Government and their effort to stamp out traffic in marihuana and narcotic drugs.

Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A., provides in part as follows:

"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto * * * stating distinctly the matter to which he objects and the grounds of his objection." (Emphasis added.)

Under the foregoing rule, a trial court may not be held to have committed reversible error where an objection assigned to a part of its charge and the grounds therefor are not precisely and distinctly stated: Armstrong v. United States, 228 F.2d 764 (8 Cir. 1956); Northcraft v. United States, 271 F.2d 184 (8 Cir. 1959). It is obvious from the objection infra that appellant's counsel merely stated the subject to which he objected and wholly failed to state "the grounds of his objection." As to the "loyalty and integrity" portion of such charge, counsel failed to state any objection. Therefore, unless we can say "plain error" appears in respect to the above portion of the charge as given by the court below and that it affected the "substantial right" of appellant, his first assignment of error should not "be noticed." Rule 52, F.R.Cr.P., 18 U.S.C.A.

We find no plain error exists to either part of such charge for these reasons. A trial court may comment in its charge to a jury concerning a fact or matter of common knowledge, or a fact of which judicial notice may be taken, and it is not error for it to do so, where the subject of such comment is applicable to the subject matter of the case before it. 88 C.J.S. Trial § 279; 53 Am.Jur., Trial, § 609; Cf. Flanagan v. United States, 277 F.2d 109 (5 Cir. 1960). The comment of the trial court infra as to the marihuana was of that character. It is further noteworthy that appellant's own counsel in his closing argument to the Jury stated:

"A criminal trial is not an easy trial, and when a criminal trial involves narcotics, it is even more abhorrent sometimes to some people. We realize that. The defendant realizes that. His defense counsel realizes that." (Emp. added.)

At a later time in his argument, defense counsel said: "Is this the kind of testimony that is sufficient to convict a person of such an horrendous crime as passing narcotics?"

Immediately following that part of the charge infra which appellant now claims was prejudicial, the trial court gave proper instructions to the jury as to the credibility of the witnesses, reasonable doubt and all other facets of the crime for which defendant was indicted and on trial. We find the charge as a whole was legally adequate and not prejudicial in any respect. Segal v. United States, 246 F.2d 814 (8 Cir. 1957). That the Jury was not prejudiced by any portion of the above statement as made by the Court in its charge appears manifest by the fact that appellant was acquitted of a similar charge of transferring marihuana on another date under counts 3 and 4 supra. Testimony concerning that transfer was given by the same Government officers who testified to the transfer of marihuana, for which appellant was convicted and sentenced.

II. When appellant was arrested and taken into custody by agents of the Bureau of Narcotics, a "free-lance" photographer happened to be present. He took a photograph of appellant while seated in a police squad-car, covering up his face. The photographer was called as a rebuttal witness. When the photograph he took of appellant was offered in evidence defense counsel stated:

"Objection, Your Honor. I don\'t see anything that it rebuts, at all. It is immaterial, irrelevant and incompetent."

In defense of the charge made against him, appellant adduced evidence to the effect that on the evening of September 17, 1959, when it was claimed that he transferred the 4.3 grams of marihuana to a special employee of the Government who was then working with regular agents of the Bureau of Narcotics, appellant was wearing a suit and a brown felt hat. Agents of the Bureau of Narcotics had previously testified at appellant's trial that when they observed appellant receive money from the special employee and thereafter defendant passed to such employee a white envelope which was later found to contain marihuana, appellant was wearing a brown jacket and a brown, peaked cap. The photograph in question was introduced by the Government to rebut testimony of appellant's wife that at the time in question the dress of app...