United States v. Hopkins
| Decision Date | 27 April 1972 |
| Docket Number | No. 71-3281 Summary Calendar.,71-3281 Summary Calendar. |
| Citation | 458 F.2d 1353 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arvil Sutton HOPKINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles W. Stephens, Telford, Stewart & Stephens, Gainesville, Ga., for defendant-appellant.
John W. Stokes, Jr., U. S. Atty., Robert L. Smith, George H. Connell, Jr., Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Arvil Sutton Hopkins was charged in a three count indictment with possessing an unregistered still, 26 U.S.C. § 5601 (a) (1); carrying on the business of a distiller without having given bond, 26 U.S.C. § 5601(a) (4); and assaulting a federal officer with a dangerous weapon. He was acquitted by a jury of the assault charge but was convicted on the remaining counts and sentenced to eighteen months imprisonment. We affirm.
Hopkins raises two points on appeal. He first contends that the failure of the trial court to administer the oath to the jury until after the government had presented its case was reversible error. No objection was made to the tardy swearing of the jury and the trial continued. Neither party has cited, nor has our research revealed any federal case in which a similar problem has arisen.1 However, our review of various state decisions reveals that other courts have held such claimed error to be harmless.2 We are in full agreement. No prejudice has been shown by the delayed swearing of the jury, no objection was made, and the oath was administered before the jury retired to begin its deliberations. Given all of these circumstances, any error was clearly harmless.
Hopkins second contention is that the evidence was insufficient to justify the conviction for possession of an unregistered still. However, Hopkins failed to move for acquittal at the close of all the evidence. In such a case our review of the sufficiency of the evidence is limited to a determination of whether there has occurred a "manifest miscarriage of justice."3 We have held that such a miscarriage would exist only if it appears that the record is "devoid of evidence pointing to guilt."4 Upon a careful review of the record, giving particular attention to the deficiencies in the evidence alleged by Hopkins, we are convinced that the evidence before the jury was not such as to render the guilty verdict a manifest miscarriage of justice.
Affirmed.
1 See generally Lowenstein v. Federal Rubber Co., 85 F.2d 129 (8th Cir. 1936) ().
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Alston v. State Of Md.
...juror's oath until after the close of the government's case but before deliberation was harmless error,” citing United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972)); State v. Apodaca, 105 N.M. 650, 654, 735 P.2d 1156, 1160 (1987) (“Although a jury's oath is not a mere formality, ........
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United States v. Turrietta
...in individual panels); Cooper v. Campbell, 597 F.2d 628, 629 (8th Cir.1979) (untimely oath was harmless error); United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972) (same), and even those courts cannot agree on the source of the error, with some pointing to the Sixth Amendment, Coop......
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Alston v. State
...defendant's failure to object until after the verdict, which the courts considered a waiver of any objection. See United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972); Sides v. Indiana, 693 N.E.2d 1310, 1312 (Ind.1998); Manix v. Mississippi, 895 So.2d 167, 179 (Miss.2005); Missouri ......
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People v. Abadia
...We have found multiple cases from other jurisdictions in which courts have reached similar conclusions. In United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972), the court held that failing to administer the juror's oath until after the close of the government's case but before delib......