Pierce v. United States, 8720.

• Decision Date: 26 August 1966
• Docket Number: No. 8720.,8720.
• Citation: 365 F.2d 292
• Parties: Ray Dan PIERCE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.2d 292 (1966)

Ray Dan PIERCE, Appellant, v. UNITED STATES of America, Appellee.

No. 8720.

United States Court of Appeals Tenth Circuit.

August 26, 1966.

J. A. Dickinson, Topeka, Kan. (Mary Margaret Parr, Topeka, Kan., on the brief), for appellant.

Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.

Before PHILLIPS, JONES^* and BREITENSTEIN, Circuit Judges.

JONES, Circuit Judge.

The appellant, Ray Dan Pierce, was charged by an information, having waived indictment, with willfully and knowingly making threats to take the life, and inflicting bodily harm upon The President of the United States in violation of 18 U.S.C.A. § 871. He was found guilty by the verdict of a jury and sentenced to two months imprisonment and 22 months probation. From the judgment of conviction and sentence, Pierce has appealed.

There is little dispute as to the facts. When Pierce was 16 years old, he left school without finishing the 10th grade. Soon after he became 17 and with his father's consent, he entered the Navy. After preliminary training he was assigned to the USS Mills which was stationed at Key West, Florida. He believed himself to be entitled to a leave of absence. This was denied him and he left his ship without leave. He stayed in Miami for a few days and then went to Fort Worth, Texas, where his parents resided. While he was at the home of his parents they received a letter from the Navy advising them that their son was AWOL. His parents urged him to go back to the Navy but he did not do so. He left Fort Worth and went to Lawrence, Kansas, and worked there for two weeks. When it was learned in Lawrence that he was absent without leave from the Navy, he went to Holton, Kansas. The police there were on the lookout for him and took him into custody. At first he gave an assumed name but later admitted his identity. He was placed in the city jail at Holton to wait until the Navy could send for him. He was put into a double cell or rather two cells separated by bars with an open door between them. After about 24 hours Orville Pahmahmie, who had been arrested for drunkenness, was placed in the other compartment of the cell. Pahmahmie was talkative, and he and Pierce talked. Pierce asked one of the officers for paper to write to a sister or sister-in-law. After covering a good part of one side of the paper, he remembered that he did not have her address and with his pencil he effaced what he had written. He turned the paper over and wrote

I Ray Dan Pierce hear by sic being of sound mind & body do hearby sic swear to kill the President of the United States of America the first chance I get.

The foregoing was followed by an obscene remark and a statement disowning American citizenship and proclaiming feathy sic to Russia. After writing the above language, Pierce pencilled in over the beginning of it the words "Dear Mr. Johnson." He turned the paper over and wrote across the bottom of it "and by the way send me $100.00 for cigarette money." He handed the paper to one of the Holton officers and asked him to mail it. The officer asked him "who to?" and Pierce replied "The White House." On being told that the matter would have to be reported, Pierce responded that he didn't care. The following day Pierce was visited by a Secret Service agent and to him Pierce stated, which he had not done on the preceding day, that the whole matter was a joke between his drunken cellmate and himself. At the trial the facts as outlined were before the jury. Pahmahmie was called as a witness and said that he remembered nothing that happened, and the inference was inescapable that he was too intoxicated to remember what happened. Perhaps not here pertinent but it may be noted that Pierce testified that he shook hands with President Kennedy on November 22, 1963, prior to his assassination. There was evidence that Pierce had been bitter because his request for leave had been denied.

The court denied the defendant's motion for a directed verdict. The court refused to give his requested instruction that if the words were written idly or in jest, then the act was not knowingly and willfully done within the meaning of the statute. The court instead gave an instruction that a threat is knowingly made if the maker of it comprehends the meaning of the words uttered by him and that a threat is willfully made if in addition to comprehending the meaning of the words, the maker voluntarily and intentionally utters or writes them as the declaration of an...