Mullin v. United States
| Decision Date | 25 January 1966 |
| Docket Number | No. 19308.,19308. |
| Citation | 123 US App. DC 29,356 F.2d 368 |
| Parties | Stanley H. MULLIN, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. M. Michael Cramer, Washington, D. C., with whom Mr. H. Thomas Sisk, Jr., Washington, D. C. (both appointed by this Court), was on the brief, for appellant.
Miss Carol Garfiel, Asst. U. S. Atty., for appellee. Mr. John C. Conliff, Jr., U. S. Atty. at time brief was filed, Messrs. Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., and Mr. Jerome Nelson, Asst. U. S. Atty. at time brief was filed, were on the brief, for appellee.
Before BURGER, WRIGHT and LEVENTHAL, Circuit Judges.
This is an appeal from a judgment of conviction of robbery. D.C.Code Sec. 22-2901 (1961). The principal questions presented are whether the trial resulting in the conviction under review violated the double jeopardy clause of the Fifth Amendment and whether that claim is timely. The double jeopardy claim rests on the circumstance in a prior trial in which the District Judge declared a mistrial when the jury, having retired to deliberate, sent a note to the District Judge as follows:
No objection to the declaration of mistrial was made by either counsel; five days later Appellant's counsel filed a motion for acquittal contending that the note from the Jury Foreman meant the Government had failed to prove its case. This motion was denied and no review was sought of the District Court's action until the point was raised here after conviction at the second trial. We note that Appellant was represented by the same counsel at both trials but at no time in the second trial was the claim of double jeopardy raised.
If a jury reports to a Trial Judge that none of the jurors considers the evidence sufficient for a conviction it would of course be the duty of the Judge to instruct the jury that such agreement on the lack of evidence compelled a verdict of acquittal. However in this case, the note from the jury did not indicate that the jurors were agreed on "the lack of evidence" but only that they were "not able to reach an unanimous decision," and that "more conclusive evidence is needed to bring about a full vote." This was nothing more than a layman's way of advising the Court that the jury could not agree. Had the jury said no more, the Court might well have considered the appropriateness of a supplemental charge to remind them of each juror's duty to give consideration...
To continue reading
Request your trial
-
United States v. Sawyers
...Burger, speaking as a judge of the Court of Appeals for the District of Columbia Circuit, had occasion in Mullin v. United States, 123 U. S.App.D.C. 29, 356 F.2d 368 (1966), to review a trial in which the vote had been disclosed to the judge without his solicitation. He It would have been a......
-
U.S. v. Diggs
...but there, the Judge erroneously had required the jury to disclose the extent of its division. Floyd cites Mullin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368 (1966). The issue in Mullin involved the appellant's claim of double jeopardy presented in a second trial after an earlier mi......
-
U.S. v. Seawell
...precluded the use of the Allen charge. United States v. Williams, 444 F.2d 108, 109 (9th Cir. 1971). Contra, Mullin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368, 370 (1966). It would, however, be reversible error for a trial judge to inquire into the numerical split of a jury before ......
-
Williams v. United States
...even where the division is inadvertently revealed to the court by the foreman, the coercion is the same. Mullin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368 (1966). A salutary device for insuring that a jury's verdict is freely given is the jury poll. The object of the "is to give ea......