Lake v. United States, 16680.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 302 F.2d 452
• Parties: James Austin LAKE, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 16680.,16680.
• Decision Date: 26 April 1962

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.

302 F.2d 453

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.)

302 F.2d 454

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,...