United States v. Brumbaugh, 72-1356.
| Decision Date | 18 January 1973 |
| Docket Number | No. 72-1356.,72-1356. |
| Citation | 471 F.2d 1128 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Frank BRUMBAUGH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William J. Dammarell, Cincinnati, Ohio, Court-appointed on brief, for defendant-appellant.
Jack B. Streepy, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and CECIL, Senior Circuit Judge.
This is an appeal by Joseph Frank Brumbaugh from his conviction on a charge of bank robbery in the United States District Court for the Northern District of Ohio, Eastern Division. Brumbaugh was indicted under Section 2113(a), (d), Title 18, U.S.C. for robbing the Polk State Bank at Polk, Ohio on May 28, 1970.
The evidence shows that the bank was in fact robbed, on the day indicated, by Brumbaugh and one William Hewlett. Brumbaugh does not deny that he participated in the robbery and that he did the specific acts in the robbery charged to him. His defense is an unusual one. He claims that he was a hostage of Hewlett and was under the complete dominance of him, acting under him at the point of a gun wielded by Hewlett. There was substantial evidence to support the jury's verdict of guilty and we therefore do not have before us the question of the weight of the evidence.
Appellant's accomplice, William Hewlett, took the witness stand and testified on behalf of the government. He had previously pleaded guilty and was sentenced to eight years imprisonment. Appellant alleged that the witness had been in the hospital in 1967 for a mental condition. He had the hospital report in court and he claims that the trial judge erred in refusing to place it into the record of the trial and to permit the witness to be cross-examined on it. The trial judge held a voir dire examination and at the conclusion of the hearing, quoted the "Comments and Summary" as follows:
The court then ruled out any cross-examination by defense counsel relating to the mental condition of the witness. We do not find that the hospital report was ever actually offered into evidence at trial.
We have examined the record very carefully and conclude that there is no merit to the claim that the court erred with respect to this hospital report.
Another claim made on behalf of the appellant is that the court bailiff made improper remarks to a juror while he was out of the jury room during the progress of the jury's deliberation. The attorney for the defendant heard the remarks and reported the incident to the judge after the jury had returned its verdict. Shortly thereafter the juror, Donald W. Stump, was located, duly sworn by the Court and after some preliminary statements by the judge indicating that the juror was properly in the coffee shop with the bailiff, was examined as follows:
The Bailiff denied the conversation as related by the juror. The trial judge apparently did not believe him. We therefore, in our consideration of the incident assume the correctness of the juror's account of it. We do not condone such conduct on the part of an officer in charge of a jury during its deliberation and neither did the trial judge.
He immediately summoned the juror into court and examined him under oath. We have set forth this examination in full. The judge concluded that the juror was not influenced by the conversation and we agree. The judge was in...
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