Page v. United States

• Decision Date: 12 October 1960
• Docket Number: 15196.,No. 15195,15195
• Citation: 282 F.2d 807
• Parties: Alfred PAGE, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

282 F.2d 807 (1960)

Alfred PAGE, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 15195, 15196.

United States Court of Appeals Eighth Circuit.

October 12, 1960.

COPYRIGHT MATERIAL OMITTED

Sidney M. Glazer, St. Louis, Mo., for appellant; Morris A. Shenker, St. Louis, Mo., on the brief.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee. Wm. H. Webster, U. S. Atty., St. Louis, Mo., on the brief.

Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

These are appeals from two judgments of conviction entered July 30, 1954, on the verdicts of a jury finding the defendant, Page, guilty under two counts of a three-count indictment charging violations of the narcotic laws of the United States, and guilty under a second indictment charging him with possession of an unregistered sawed-off, twelve gauge, double barreled shotgun, with barrels less than eighteen inches in length; this in violation of § 3261(b) of 26 U.S.C. The indictments had been consolidated for trial. Page was sentenced to five years' imprisonment under the first indictment and to five years' imprisonment under the second indictment, the sentences to be served consecutively. Notices of appeal were filed by Page, but he was denied leave to proceed on appeal in forma pauperis.

The Supreme Court on March 23, 1959, directed "reconsideration of petitioner's Page's right to appeal in forma pauperis from his 1954 conviction on the basis of a transcript of the record at the trial." 359 U.S. 116, 79 S.Ct. 730, 3 L.Ed.2d 674. In compliance with the mandate of that Court, we directed the United States Attorney to procure, at Government expense, a transcript of the evidence and proceedings at the trial of Page, and to serve a copy upon counsel whom we appointed to represent him in connection with his motion for leave to prosecute his appeals as a poor person despite the certificate of the trial judge that they were not taken in good faith. We requested counsel, so appointed, to file with this Court a copy of the trial record and a report pointing out in what respects the trial judge, who had denied Page leave to appeal as a poor person, erred in certifying that the appeals were not taken in good faith. The history of Page's case and the order of this Court appear in 268 F.2d 251.

Mr. Morris A. Shenker, one of court-appointed counsel for Page, in the report and in his supporting brief raises three points which he believes are not frivolous, namely:

1. The sentence under the second indictment (possession of an unregistered sawed-off shotgun) is illegal because the statute upon which it was based (§ 3261 (b) of the Internal Revenue Code of 1939) is unconstitutional, since compliance with it compels self-incrimination, in contravention of the Fifth Amendment.

2. The trial court erred in denying Page's pretrial motion to suppress the shotgun as evidence because it was procured as the result of an unreasonable search and seizure.

3. The instructions of the court to the jury were inaccurate and inadequate.

This Court on December 23, 1959 (272 F.2d 816), granted Page leave to proceed on appeal in forma pauperis and appointed Mr. Shenker to brief and argue the cases on final submission. We are indebted to him for his assistance in bringing to our attention, by brief and argument, everything which could possibly be of help to Page on these appeals.

The assertion that the court erred in its instructions with respect to the charges of violations of the narcotic laws contained in the first indictment, we think comes too late and is without substantial merit. The defendant was represented at the trial by competent counsel of his own choosing. At the conclusion of the charge to the jury, the trial judge asked counsel if there were any suggestions for additions or any objections to the charge. Counsel for Page stated he had no suggestions for further instructions and no exceptions. Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C., provides that: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." In view of this Rule, we could not now justify a reversal for a defect, if one existed, in the charge of the court. The fact that what counsel for Page said about having no objections to the court's instructions was said in the presence of the jury is of no consequence. Surely a trial judge, before furnishing an attorney an opportunity to make objection out of the hearing of the jury, does not err in asking if the attorney has any objections to make.

Mr. Shenker, in his brief and argument, has urged us to declare the statute¹ under which Page was indicted and convicted for possessing the unregistered sawed-off shotgun, unconstitutional as requiring one in his situation, by registering the gun, to incriminate himself.

The constitutionality of the statute upon which the charge against Page of possessing an unregistered firearm was based was not questioned at the trial. Under Rule 52(b) of the Federal Rules of Criminal Procedure, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." It has always been the rule that, in order to prevent a miscarriage of justice, a federal appellate court, in the exercise of a sound discretion, may notice plain and vital errors occurring during the trial of a criminal case, although not preserved for review by objection or exception. Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; Crawford v. United States, 212 U.S. 183, 194, 29 S.Ct. 260, 53 L.Ed. 465; Whitney v. People of State of California, 274 U.S. 357, 380, 47 S.Ct. 641, 71 L.Ed. 1095; Ayers v. United States, 8 Cir., 58 F.2d 607, 608-609. But the power of a reviewing court to consider a question first presented on appeal is an exception to the rule that such a court will not consider errors not objected to at the trial. Lamento v. United States, 8 Cir., 4 F. 2d 901, 904. A trial judge ordinarily should not be held to have erred in not deciding correctly a question that he was never asked to decide.

In Yakus v. United States, 321 U.S. 414, 444-445, 64 S.Ct. 660, 677, 88 L.Ed. 834, the Court said:

"No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. O\'Neil v. State of Vermont, 144 U.S. 323, 331, 12 S.Ct. 693, 696, 36 L.Ed. 450; Barbour v. State of Georgia, 249 U. S. 454, 460, 39 S.Ct. 316, 317, 63 L. Ed. 704; Whitney v. People of State of California, 274 U.S. 357, 360, 362, 380, 47 S.Ct. 641, 642, 643, 650, 71 L.Ed. 1095. Courts may for that reason refuse to consider a constitutional objection even though a like objection had previously been sustained in a case in which it was properly taken. Seaboard Air Line Ry. Co. v. Watson, 287 U.S. 86, 53 S.Ct. 32, 77 L.Ed. 180. While this Court in its discretion sometimes departs from this rule in cases from lower federal courts, it invariably adheres to it in cases from state courts, see Brandeis, J. concurring in Whitney v. People of State of California, supra, 274 U.S. at page 380, 47 S.Ct. at page 650, 71 L.Ed. 1095, and it could hardly be maintained that it is beyond legislative power to make the rule inflexible in all cases. Compare Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3, with Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717."

We are convinced that the exercise of a sound judicial discretion requires that, in the instant cases, we decline to pass upon the constitutionality of the National Firearms Act requiring the registration by possessors, such as Page, of sawed-off shotguns — useless for any lawful purpose. The constitutional question has been ably briefed. If the Act, in so far as applicable here, is to be declared invalid, that should, we think, be done by the Supreme Court on certiorari — so that the declaration will have nation-wide effect and acceptance. The Act in question has thus far stood up well under attack (United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772) and is certainly not so plainly unconstitutional (United States v. Cumbee, D.C.Minn., 84 F.Supp. 390, 392) that the failure of the trial court or this Court to hold it so can be regarded as a plain error or a culpable neglect of judicial duty.

When this Court granted leave to Page to proceed with his appeals as a poor person, it was thought that the question whether evidence procured through an illegal search by state officers, without federal participation, was admissible in a criminal trial in a federal court, was present in the case involving the unregistered sawed-off shotgun. The issue was raised in Page's pretrial motion, filed on June 22, 1954, under Rule 41(e) of the Federal Rules of Criminal Procedure, to suppress the shotgun as evidence. That motion read as follows:

"Comes now defendant herein and respectfully states to the Court that on or about the 11th day of April, 1954, at 4864 St. Louis Avenue in the City of St. Louis, Missouri, members of the Metropolitan Police Department of said City of St. Louis, Missouri, whose names are to said defendant unknown, unlawfully and without search warrants entered the building known as 4864 St. Louis Avenue and without search warrants or other legal right searched said premises, and therefrom took a shot gun with a barrel less than eighteen inches (18"); that the United States District Attorney proposes and intends to offer in evidence said shot gun so illegally and without warrant by them

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