Tomley v. United States, 16320.

• Decision Date: 30 January 1958
• Docket Number: No. 16320.,16320.
• Citation: 250 F.2d 549
• Parties: Joseph TOMLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

250 F.2d 549 (1957)

Joseph TOMLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 16320.

United States Court of Appeals Fifth Circuit.

December 26, 1957.

Rehearing Denied January 30, 1958.

Wallace Miller, Jr., Macon, Ga., for appellant.

Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., Frank O. Evans, U. S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and CAMERON, Circuit Judges.

BORAH, Circuit Judge.

The appellant, Joseph Tomley, and one Andrew Jackson Wright were indicted for conspiracy to violate 18 U.S.C. § 641 and both of them were also charged with various substantive offenses including violations of the same law. Wright pleaded guilty to all counts against him. Appellant went to trial before a jury and was found guilty only of conspiracy as charged in Count One of the indictment and was sentenced thereon to imprisonment for a term of three years.

Appellant's appeal is based upon (1) certain portions of the judge's charge to the jury; (2) the court's refusal to give in charge to the jury defendant's eight requested instructions; and (3) the insufficiency of the evidence to support the jury verdict.

Appellant's first and third specifications of error which have to do respectively with the court's charge in relation to character evidence and to the illustrations used by the court in defining the offense of conspiracy are patently without substance. Criminal Procedure Rule 30, 18 U.S.C.,¹ providing that no party may assign as error the giving of or failure to give an instruction unless he objects thereto, stating distinctly the matter to which he objects and the grounds of his objection, has the force of law. Under that rule, in order to put the trial court in error, it is necessary that the defendant precisely state the grounds of his objection and that the grounds stated point out an error prejudicial to the defendant. Estep v. United States, 5 Cir., 223 F.2d 19, 22. The defendant did not do this here, and consequently, we are not required to consider specifications one and three. While it is true that in extraordinary circumstances we may, on our own motion, notice errors to which no exception has been taken,² if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings, a careful examination of the record convinces us that no such case is presented here.

With respect to the second specification of error, appellant contends that the District Judge erred in instructing the jury as follows:

"I charge you in this connection that he is an alleged accomplice, and that you should in considering the testimony of an alleged accomplice, his testimony should be scanned with great care and received with great caution, and I charge you that the jury should consider all of the facts and circumstances in the case and if by reason of the fact that he is an accomplice you would not be willing to accept any part of his testimony, then you would be authorized to disregard it. On the other hand if you think under all of the facts and circumstances of this particular case that what the alleged accomplice testified to was true, then you would be authorized to act on his evidence and to convict on it."

With reference to this same subject matter error is also assigned to the court's failure to charge five written requests with respect to the testimony of an accomplice including the patently erroneous request that "a jury should not place too much reliance on the testimony of an accomplice, unless the jury finds that the testimony of an accomplice has been corroborated by other evidence, separate and independent of the evidence given by the accomplice." See Burton v. United States, 5 Cir., 175 F.2d 960, 961; certiorari denied 338 U.S. 909, 70 S.Ct. 347, 94 L.Ed. 560.

It appears that at the close of the testimony the defendant presented a number of written instructions, and asked the court to give them to the jury. At the conclusion of the court's charge counsel for the defendant made the following statement: "Your Honor, the only exception and request that we would have would be that our written requests that have already been submitted, which Your Honor has considered, I feel confident that it would be needless for me to pick them up and read those that the Court has not charged." Nothing however by way of objection was made to the court's charge, which on the subject of accomplice testimony was lacking in any statement equivalent to that in the rejected instructions. In his objection, counsel for defendant merely restated his requests, but did not even attempt to give the grounds for his complaint that the court below had failed to give the instructions that he had requested. Hence, there was a failure to comply with Rule 30 of the Federal Rules of Criminal Procedure which in part 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."³ This being so, and there being no prejudicial error⁴ in the court's failure to give the requested charges, appellant may not now complain of their refusal.

Similarly, and for the same reasons appellant is in no position to complain of the court's refusal to give requested instructions No. 4(f), (g), and (h). However, we have considered these specifications of error and find no merit in them.

In No. 4(f) the instruction requested was as follows:

"I charge you that any arrangement that you find the defendant might have had with Mr. A. J. Wright whereby Mr. Wright was to inform the defendant when certain items of merchandise were to be moved or placed for sale by Warner Robins Air Material Area, Surplus Department, could not be considered by you in this case as unlawful, and you would not be authorized to convict the defendant of any such arrangement; any such arrangement would not violate any criminal law that might be involved in this case."

Appellant contends that the failure of the court to charge this request "illegally permitted the jury, under the general charge of the court as to an agreement under a conspiracy charge, to conclude that this simple arrangement that appellant admitted he had with Wright constituted an `agreement' which would satisfy the agreement requirements of the conspiracy count." We think that appellant's contention is more fanciful than real and that no prejudice resulted from the failure to give this charge for the reason that the court's charge when considered as a whole was eminently fair and fully protected the rights of appellant. As to the conspiracy count the court instructed the jury in part as follows:

"Now, this indictment, which, as I said, you can read throughout if you want to, charges in substance that these two defendants Wright and Tomley, conspired among themselves and with other persons to the Grand Jurors unknown, and therefore unnamed, to do certain things, namely to steal, purloin and knowingly convert to their own use, and without authority to sell, convey and dispose of property of the United States, to wit: Scintilla breaker assemblies having platinum points thereon, American-Bosch breaker point springs having platinum points, motor gun chargers, sometimes described as motor timer guns, and

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