United States v. Furlong

• Decision Date: 04 March 1952
• Docket Number: No. 10429.,10429.
• Parties: UNITED STATES v. FURLONG.
• Court: U.S. Court of Appeals — Seventh Circuit

194 F.2d 1 (1952)

UNITED STATES v. FURLONG.

No. 10429.

United States Court of Appeals Seventh Circuit.

January 15, 1952.

Rehearing Denied March 4, 1952.

Frank J. McAdams, Jr., Gerald M. Chapman, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Lawrence J. Miller and Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

Defendants appeal from judgments entered upon a jury's verdicts of guilty upon Counts 1, 2 and 6 of an indictment charging them with impersonation of federal officers in violation of Section 912, Title 18 U.S.C. The issue presented to us is whether the trial judge erred in giving a supplemental instruction to the jury and in refusing to consider the affidavit of a juror in support of defendants' amended motion for a new trial.

The case went to the jury at 11:30 a.m. At 2:30 p.m. the foreman advised the court that a hopeless deadlock existed. The court, after advising counsel of the difficulty, shortly after 3 o'clock, had the jury brought into the courtroom and submitted to it the following supplemental charge: "Although the verdict to which a juror agrees must, of course, be his own verdict — the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must come; and there is no reason to suppose that the case will ever be submitted to twelve persons, twelve men and women more intelligent, more impartial, or more competent to decide it, nor that more or clearer evidence will be produced on one side or the other. With this in view, it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one part or the other, in all cases. In the present case, the burden of proof — the burden is upon the Government to establish the guilt of the defendants beyond a reasonable doubt, and if you are left in doubt as to the guilt of the defendants, or any one of them, such defendant or defendants is entitled to the benefit of that doubt and must be acquitted. But, in conferring together you ought to pay proper respect to each other's opinions and reasons, with the disposition to be convinced with each other's arguments. And, on the one hand, if much the larger number of you are for a conviction the dissenting jurors should consider whether the doubt in their own minds is a reasonable one which makes no impression upon the minds of so many men and women equally honest, and equally intelligent, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if the majority of you are for acquittal, the minority should equally ask themselves whether they may not reasonably and ought to doubt the correctness of the judgment which is not concurred in by a number of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their fellows. With that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict. You will again retire to your jury room and continue your deliberations."

Defendants' principal assault is upon the last sentence of the charge. That all other parts were proper is apparent from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; indeed, they were in the language approved by the court in that case. However, the concluding sentence, that the jury should continue to deliberate until it arrived at a unanimous verdict, is not within the Allen case and defendants urge that it is of such character that it must necessarily have coerced or influenced the jury.

Criminal Procedure Rule 30, 18 U.S.C. providing that no party may assign as error giving 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 it the objecting party must state specifically to what he objects and the grounds for his objection. It is a salutary rule, for its purpose is to give the judge an opportunity to make any correction which he thinks is proper and, thus, to minimize the possibility of error. Hower v. Roberts, 8 Cir., 153 F.2d 726. It is intended to prevent a litigant from taking advantage, after verdict, of the giving of an erroneous instruction to which he failed to call attention in time to afford the court an opportunity to correct it. Palmer v. Miller, 8 Cir., 145 F.2d 926. Unless the objection is made before verdict, a reviewing court is powerless to consider it; it can not be raised for the first time on motion for new trial or on appeal. Christensen v. Trotter, 9 Cir., 171 F.2d 66; Meadows v. U. S., 4 Cir., 144 F.2d 751; Atwater Kent Mfg. Co. v. U. S., D.C., 53 F.Supp. 472, affirmed, 3 Cir., 145 F.2d 374, 159 A.L.R. 1; and it must be specific; otherwise, it is not sufficient, Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645. If the objecting party does not state in the trial court before verdict, the grounds of his objections and call the attention of the trial court to the claimed error, he is deemed to have waived the right to object. Thiel v. Southern Pac. Co., 9 Cir., 149 F.2d 783, reversed on other grounds 328 U.S. 217, 66 S.Ct. 984, 90 L. Ed. 1181.

The record in this cause discloses that when the court advised counsel that it intended to give the charge approved in the Allen case, it inquired whether either of them had any objection. Counsel for defendants said merely that he "objected." His reasons were not stated. After the court had completed the supplemental charge, counsel for defendants made no motion, either before or after the jury retired, for opportunity to state any objection to the instruction, although the record shows that he was present and inquired as to who the foreman was. Obviously, if defendants thought that the final sentence was erroneous in that it tended to coerce the jury, they should have asked leave to object and called the court's attention to that specific objection. Had they done so, the court could have made any correction deemed proper and avoided any possible error. By their failure to object or to ask leave to do so, defendants waived any right in this respect. The earlier general objection was not sufficient to preserve the point, as it did not advise the court of any specific ground relied upon. Under the authorities cited, it was too late to set up a valid objection after verdict and to assign error upon it in this court.

We might observe that the record is persuasive that the jury was in no wise coerced, influenced or biased, for it reflected by its verdict careful consideration of the issues as to each defendant. Thus, one defendant was found not guilty, and, as to each of the three now appealing, the jury found them not guilty on Counts 3, 4 and 5 but guilty on Counts 1, 2 and 6. Prima facie such verdicts reflect careful...