Medley v. United States

• Citation: 81 US App. DC 85,155 F.2d 857
• Decision Date: 17 April 1946
• Docket Number: No. 9057.,9057.
• Parties: MEDLEY v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

81 US App. DC 85, 155 F.2d 857 (1946)

MEDLEY v. UNITED STATES.

No. 9057.

United States Court of Appeals District of Columbia.

Argued March 25, 1946.

Decided April 17, 1946.

Writ of Certiorari Denied June 10, 1946.

Mr. James K. Hughes, of Washington, D. C., for appellant. Mr. Oliver Wendell Holmes Hughes, of Washington, D. C., also entered an appearance for appellant.

Mr. Daniel B. Haher, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, John W. Fihelly and Sidney S. Sachs, Assistant United States Attorneys, all of Washington, D. C., were on the brief for appellee. Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellee.

Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTYMAN, Associate Justices.

Writ of Certiorari Denied June 10, 1946. See 66 S.Ct. 1377.

GRONER, C. J.

Appellant was indicted in the District Court at the January Term, 1945, for the murder of one Nancy Boyer while perpetrating robbery.¹ He was convicted in June, 1945, and sentenced to be electrocuted. He has appealed and has assigned twenty-one grounds of error. These are summarized by his counsel under five headings —

1. The order overruling defendant's plea in abatement.

2. Prejudicial newspaper comments, improper admission of testimony, improper comment by witnesses and Government counsel, and the display throughout the trial of the bloody clothing of the deceased.

3. Improper admission of expert testimony.

4. Permitting counsel to read the court's instructions and failure of the court personally to charge the jury.

5. That the verdict was contrary to the evidence.

We shall consider these points in the order in which we have stated them.

First: The record shows that appellant pleaded to the indictment March 29, 1945, the day on which it was returned in open court. The proceedings in that respect were not stenographically recorded, but counsel inform us, and the statement is not challenged, that appellant requested that the arraignment be postponed for two weeks. The Government objected and the court ruled that the defendant must plead at once. Thereupon the defendant pleaded not guilty, with leave of the court to withdraw the plea and demur to or move to quash the indictment, or otherwise plead within two weeks. The time was subsequently extended by agreement of counsel, with the consent of the court. On April 20th, twenty-two days after the arraignment, but within the time limit agreed upon, appellant filed a plea in abatement. This alleged that the Grand Jury was not selected in accordance with local statutory requirements.²

The court rejected the plea on the ground it was filed too late. This, we think, was correct. It is provided by statute³ that "No plea to abate nor motion to quash any indictment upon the ground of irregularity in the drawing or impaneling of the grand jury or upon the ground of disqualification of a grand juror shall be sustained or granted unless such plea or motion shall have been filed before, or within ten days after, the defendant filing such plea * * * is presented for arraignment; * * *." This language is clear and unequivocal and was obviously intended to place a fixed time limit where previously an element of discretion had in some measure obtained.

It is argued here, however, that the order granting leave to defendant to withdraw his plea of not guilty within two weeks operated to toll the statutory period and to permit the defendant, within the additional time, to avail himself of the right to the same extent as if the plea had been filed within the statutory period. But we think the argument invalid. The statute, with a well recognized purpose in view, prescribes a definite time limit after which the right, if not availed of, is lost. Hence it is not within the power of a court to extend the time, nor may it be done by agreement of counsel. The precise question, so far as we are advised, first arose in the case of United States, ex rel. McCann, v. Thompson, Warden, 2 Cir., 144 F.2d 604, 156 A.L.R. 240, certiorari denied, 323 U.S. 790, 65 S.Ct. 313. There it was said that the statute does not permit the right to be reserved, by any means, beyond the time limit prescribed. Prior to the enactment of the statute the rule was firmly established that a defendant must take the first opportunity in his power to make the objection, and under that rule a plea filed five days after arraignment was held to be too late, Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 239, 41 L.Ed. 624.

Moreover, it is well established that such pleas must be pleaded with exactness and in the Agnew case (supra) it was held that a plea to abate "is fatally defective in that, although it is stated that the drawing of the Grand Jury `tended to his defendant's injury and prejudice,"' fails to set out the particular respect or respects in which the irregularity resulted in prejudice. Here, nothing is shown or alleged to the damage or hurt of defendant, and without it the allegation of mere irregularity in drawing or impaneling the Grand Jury is not enough. See also United States v. Parker, 103 F.2d 857, certiorari denied Parker v. United States, 307 U.S. 642, 59 S.Ct. 1044, 83 L.Ed. 1522.

Second: Much is made of local newspaper articles appearing after appellant's arrest and before trial regarding appellant's alleged criminal activity prior to the slaying of Mrs. Boyer. It is enough to say as to this that the court in the examination of prospective jurors was careful to exclude all who admitted any bias as the result of having seen or read the newspaper stories. After careful examination, the court accepted only those who declared on their oaths that they could and would give appellant a fair and impartial trial.

The assignment also alleges error in the admission of evidence of other crimes and specifically that the jury were permitted to know that appellant at...