United States v. Butler

• Decision Date: 01 February 1968
• Docket Number: No. 11508,11562.,11508
• Citation: 390 F.2d 620
• Parties: UNITED STATES of America, Appellee, v. Marshall Reginald BUTLER, Appellant. UNITED STATES of America, Appellee, v. Clifton Hall JOHNSON, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

390 F.2d 620 (1968)

UNITED STATES of America, Appellee, v. Marshall Reginald BUTLER, Appellant.

UNITED STATES of America, Appellee, v. Clifton Hall JOHNSON, Jr., Appellant.

Nos. 11508, 11562.

United States Court of Appeals Fourth Circuit.

Argued December 5, 1967.

Decided February 1, 1968.

Plato Cacheris, Alexandria, Va. (Court-appointed counsel), for appellant in No. 11,508.

Frank L. Cowles, Jr., Fairfax, Va. (Court-appointed counsel), for appellant in No. 11,562.

John D. Schmidtlein, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOBELOFF, BRYAN and CRAVEN, Circuit Judges.

PER CURIAM:

Appellants, Butler and Johnson, were convicted under an indictment charging breaking and entering with the intent to commit larceny in violation of Title 18.1-89 of the Code of Virginia. Federal jurisdiction was based on the Assimilative Crimes Act, 18 U.S.C.A. § 13. The trial judge, sitting without a jury, found that the Post Exchange of Henderson Hall, a United States Marine Corps reservation in Arlington County, Virginia, was entered on the night of May 11, 1966, by removing a heavy wire-mesh covering from a window and that the fingerprints of Butler and Johnson found on the window could only have been put there after the covering was removed.

Many of the arguments advanced by the appellants fall with these findings made by the trial judge. Thus, both Butler and Johnson argue that a fingerprint on the outside of a window is insufficient to prove breaking and entering, absent evidence of when the print was made. But the district court found that the fingerprints could have been made only after the grill was removed, that the window had not been used for a considerable time, and that the fingerprints were in such a position as to suggest that they were made by someone raising the window.¹ Moreover, the court made it perfectly clear that it relied on no other evidence or inference to conclude guilt. Thus, Butler's complaint of the prosecution's comment on his failure to testify is not well founded.

In Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the rule was established that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828. We have no hesitation in so declaring in view of the statement by the trial judge set out in the margin.² There "may be some...