United States v. Hill

• Decision Date: 30 September 1969
• Docket Number: No. 27115 Summary Calendar.,27115 Summary Calendar.
• Citation: 417 F.2d 279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Hubert HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

417 F.2d 279 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Charles Hubert HILL, Defendant-Appellant.

No. 27115 Summary Calendar.

United States Court of Appeals Fifth Circuit.

September 30, 1969.

Thomas M. Hendricks, Jr., Howard R. Pigford, Meridian, Miss., for defendant-appellant.

Robert E. Hauberg, U. S. Atty., E. Donald Strange, Joseph E. Brown, Jr., Asst. U. S. Attys., Jackson, Miss., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

Appellant, Charles Hubert Hill, was convicted by a jury in the United States District Court for the Southern District of Mississippi under an indictment charging a conspiracy to violate certain revenue laws of the United States relating to nontax-paid whiskey in violation of 18 U.S.C. § 371 (1964). The errors assigned by Hill on this appeal relate to cross-examination, the admissibility of evidence, denial of his motions for acquittal, sufficiency of the evidence and the trial court's jury instructions. We find no merit in any of his contentions except those relating to the jury charge. We reverse for reasons subsequently stated.¹

Appellant alleges that the trial court erred in giving what is popularly known as the "Allen" charge. We do not agree. After the jurors had deliberated for approximately six hours and reported that they were unable to reach a verdict, the trial court proceeded to instruct the jury in terms very similar to those approved by the Supreme Court in Allen v. United States.² Our position concerning this type of charge was expressed in Thaggard v. United States:

This court, although sometimes reluctantly, has approved the "Allen" charge, while carefully assuring ourselves that there are not engrafted upon it any partial or one-sided comments. * * * Such a charge, so long as it makes plain to the jury that each member of the jury has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial, * * * is still a permissible charge to be given in proper circumstances in this Circuit.³

Appellant argues that the charge was improper because it placed "tremendous pressure on the jurors individually and as a whole jury to make a decision in this case." We disagree with this interpretation. When the charge is considered as a whole, we believe the "pressure" is directed toward a completely legitimate goal. The court strongly urged the jurors to thoroughly reassess their own conclusions and those of their colleagues, and to conscientiously and candidly discuss their opinions. The court was adamant in pointing out that jurors were not to sacrifice an honest conviction for the sake of unanimity and that it was positively not their duty to agree on a verdict. We find that the charge was proper in all respects.

We come now to another portion of the court's charge which the appellant claims was highly prejudicial. The court opened its instructions to the jury with the following statement:

Members of the Jury, the Court will now instruct you as to the rules of law which you will apply to the evidence in reaching your decision in this case, so we are coming now to your place to function as a citizen in this case and important function it is. This is the only voice that reavlly sic a private citizen ever has in a Federal Court. You don\'t have any choice. You don\'t have any right to vote for the person who presides over the Federal Court or any of its officials, but you do have a chance now to decide what kind of government you want in your area of the State and I am here to see that that kind of government that you do want is enforced, so if you want good government its an opportunity in these cases where you sit as jurors to express yourself in that way and if you don\'t want any government, if you want chaos and if you want anarchy, if you want people to observe the laws that they like to observe and to ignore the others vote your preference in these cases where you sit as jurors, because as I say this is the only time you ever have an opportunity to express any views you may have on the subject of what kind of government you want.

It is our considered judgment that the foregoing "instructions" were improper, prejudicial, and did not relate in any manner to the facts, the law or the charge against the appellant. The defendant was tried under a relatively simple, single-count indictment charging an uninvolved conspiracy to violate certain federal statutes relating to non-tax-paid whiskey. We are unable to find any justification whatsoever for the court's didactic and hortatory deliverance concerning the "kind of government" the jurors want, and the subjects of "chaos", and "anarchy."

It is not our purpose to outline a fixed pattern to be followed in giving jury instructions. However, we do believe it is appropriate to state that the primary purpose of such instructions is to define with substantial particularity the factual issues, and clearly to instruct the jurors as to the principles of law which they are to apply in deciding the factual issues involved in the case before them. It is a good practice to outline such factual...