Paschal v. United States

• Decision Date: 25 July 1962
• Docket Number: No. 18874.,18874.
• Parties: John George PASCHAL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

306 F.2d 398 (1962)

John George PASCHAL, Appellant, v. UNITED STATES of America, Appellee.

No. 18874.

United States Court of Appeals Fifth Circuit.

July 25, 1962.

Euel A. Screws, Jr., Montgomery, Ala., for appellant.

John L. Briggs, Asst. U. S. Atty., Jacksonville, Fla., Edward F. Boardman, U. S. Atty., Miami, Fla., for appellee.

Before HUTCHESON, CAMERON and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

John George Paschal was tried under a five count indictment for the alleged crime of passing five twenty-dollar bills in violation of 18 U.S.C.A. § 472. The jury returned a verdict of guilty on all five counts and the court sentenced the defendant to ten years imprisonment. His motion for a new trial was denied and he prosecutes this appeal in forma pauperis pursuant to the provisions of 28 U.S.C.A. § 1915.

The defendant, John George Paschal, a twenty-two year old man, was a resident of New Jersey and he was an automobile mechanic by occupation. He had held the rank of Specialist Third Class in the Army and was stationed in or near Orleans, France for a substantial time during service. About a month after release from the service, he, his mother, and fifteen year old brother made a trip to Florida because of his mother's ill health. When the trip began, Paschal had $400.00 cash in mixed denominations, his mother about $150.00, and his brother about $55.00. Upon arrival in Daytona Beach, Florida, the three checked into the Garrison Terrace Motel.

For the next week to ten days the family visited the beach quite often, went swimming, ate in various restaurants, visited neighboring towns and conducted themselves generally as tourists. The mother, who suffered from arthritis, improved to such an extent that the family group concluded to stay in Daytona Beach, at least temporarily, and the younger brother enrolled in high school there.

On the afternoon of December 3, 1958, after the family had been in Daytona for about two weeks, Paschal went to Sears & Roebuck to buy a sweater and pair of pants. The purchase came to approximately $14.00 or $15.00. Paschal paid the salesman with a twenty dollar bill. The salesman had been alerted by the Assistant Manager to check on twenty dollars bills, since it was thought there were counterfeit twenties being passed in that area. The salesman checked the serial numbers on the bill given to him by Paschal with the numbers on the list furnished to him. They were the same. The Merchandise Manager, Assistant Manager and store detective were alerted and they also checked the serial numbers against the list. In addition to the identity of the numbers, the bill appeared to be "a little faded". A detective was called who took Paschal to the police station and after some interrogation, Paschal was arrested.

There were four other purchases with counterfeit twenty dollar bills which were traced to the defendant, Paschal. On December 2, 1958, he bought a sweater and pair of slacks for a young lady which cost about $18.00 and he presented a counterfeit twenty in payment. On the same day he purchased a recapped tire and paid for it with a counterfeit twenty. On November 28, 1958, Paschal obtained change for a counterfeit twenty for the purpose of making a long distance call to New Jersey. On November 29 or 30, 1958, he bought gas at a filling station and presented a counterfeit twenty in payment for the gas.

At the trial of the case there were no serious contentions that the money was not counterfeit nor that the defendant actually passed the bills, but rather that Paschal did not know the bills to be counterfeit, hence lacking the statutory requirement of knowledge and intent. Paschal claimed that he could have come upon the counterfeit money from his bank account in New Jersey or from a dice game in which he engaged at a motel in Daytona from which he carried away seven twenty dollar bills which he did not have previously.

At the beginning of the trial, after the jury had been sworn and qualified, the court proceeded to examine them as to their particular qualifications and especially to determine if any of them were prejudiced. The court then proceeded to discuss the power of Congress to coin money, punish counterfeiters and discuss the indictment in some factual detail. The court described this as "a big power", and commented upon the fact that "We have about 31 billion dollars in circulation". Each member of the panel stated that he could render a verdict which he honestly believed would be proper under the law and evidence. Counsel then proceeded to examine the first twelve jurors on voir dire and four were excused by the parties. Four additional jurors were called to take the place of the four who were excused. Juror Penney, the last one to be questioned, volunteered in the presence of all members of the jury that he was a stockholder and director of the Florida Bank & Trust Company of Daytona Beach; and he then stated in the presence and hearing of the jurors that the bank got "Some Paschal money" — "This defendant's money", about three years previously.¹

Counsel for Paschal approached the bench and moved the court to dismiss the jury panel because of these highly prejudicial remarks and suggested that it would save "a lot of time and effort if we start with a new jury panel". Mr. Briggs, who asked the questions of Juror Penney, was the prosecuting attorney. The court responded as follows:

"I think that there is no poison there that can\'t be removed. If I thought there was, of course I would dismiss the jury, but I don\'t think so."

The court dismissed Juror Penney and another juror was called to take his place. That jury was accepted.

We cannot agree that there was "no poison there that can't be removed". It is difficult to see how a remark could be more prejudicial. Jurors are generally conscientious and sincere citizens devoted to the task imposed upon them by law. Difficult decisions involving the life and liberty of accused persons is their task in criminal cases. They must resolve close questions involving the best interests of society and the innate desire to convict the guilty and release the innocent. When one of their own number comes forward with the conclusion of guilt based upon some special information or knowledge he has gained, in this case because the juror was a stockholder and director of a bank, the influence on the minds of the other jurors is inevitable. Such statements appear in the guise of the real truth. No one would claim that such a statement would be admissible in evidence even if it were "tempered by protective procedures". It is our judgment that neither judge nor counsel, though possessing the gravest wisdom of the wise, could effectively eradicate the impact of such an occurrence. Like the sound of a bell, the words of Juror Penney continued to vibrate in the memories of the jurors present whether they realized it or not. Nothing could undo what his words had done.

In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, the court was considering the publication of certain newspaper articles which occurred during the trial of the defendant. The trial judge on learning that prejudicial news accounts had reached the jurors, called them into his chambers one by one and interrogated them about the news stories. Three jurors had read one story; one had read two; two had scanned one; and one had scanned two. Each of the seven jurors convinced the trial judge that he would not be influenced by the news articles, but could decide the case on the record evidence only, devoid of prejudice against the defendant. The trial court was convinced and denied a motion for a new trial. Although the Supreme Court recognized the large discretion of the trial court in such circumstances, it concluded that, "* * * each case must turn on its special facts". The case was reversed because:

"The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution\'s evidence."

We believe fellow jurors would be more impressed with a statement of guilt by one of their own number, though innocently made, than they...