United States v. Kimbrew, No. 16883.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtO'SULLIVAN, PHILLIPS and EDWARDS, Circuit
Citation380 F.2d 538
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William James KIMBREW, Defendant-Appellant.
Decision Date20 July 1967
Docket NumberNo. 16883.

380 F.2d 538 (1967)

UNITED STATES of America, Plaintiff-Appellee,
v.
William James KIMBREW, Defendant-Appellant.

No. 16883.

United States Court of Appeals Sixth Circuit.

July 20, 1967.


380 F.2d 539

John W. Collis, Lexington, Ky., court appointed, for appellant.

G. Wix Unthank, Asst. U. S. Atty., Lexington, Ky., for appellee, George I. Cline, U. S. Atty., Lexington, Ky., on the brief.

Before O'SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Appellant William James Kimbrew and a co-defendant, William Hatfield Warrex, stood trial before a jury for violating 18 U.S.C. § 2314 by transporting falsely made and forged securities in interstate commerce.

On June 20, 1964, a number of American Express Company checks and a .22 caliber pistol were stolen from a Cincinnati, Ohio, residence. Testimony at the trial indicated that, on the next day, defendant Kimbrew negotiated some of these missing securities in various stores and motels in eastern Kentucky. The proprietor of one establishment became suspicious and alerted state police who apprehended Kimbrew and two companions and searched the car they were traveling in, finding more of the money orders and the stolen pistol.

The jury returned a verdict of guilty against Kimbrew. Appellant does not question that the prosecution's proofs were sufficient to permit a jury to convict him, but assigns as error the following: first, the alleged double jeopardy resulting from the dismissal of the initial indictment brought against him prior to trial, and the substitution of a second, almost identical, indictment; second, the change of plea made by co-defendant Warrex during trial and before the jury, and the subsequent identification by a witness of Warrex as an accomplice of Kimbrew; and third, the admission into evidence of the securities and gun, discovered by the police in the car in which Kimbrew was riding.

We affirm.

1) Double jeopardy.

A two-count indictment charging violations of 18 U.S.C. § 2314 was returned by a London, Kentucky, grand jury in November, 1964; it named as defendants Kimbrew, Warrex, and one Everett Bonds. A trial was scheduled for April, 1965.1 When the case was called, however, the United States Attorney moved

380 F.2d 540
to dismiss the indictment. His request was granted. He then presented another indictment, returned earlier in the month, this one containing three counts. The first and third counts were exactly the same as those in the first indictment; the new second count added a variation to the charges of criminal activity already made against Kimbrew and the others. Trial then ensued the following day

Kimbrew claims that his trial on the first and third counts of the second indictment constituted double jeopardy. But the mere returning of an indictment, and its dismissal and substitution of another, does not place a person in legal jeopardy. Bassing v. Cady, 208 U.S. 386, 391, 28 S.Ct. 392, 52 L.Ed. 540 (1908). Jeopardy occurs only after a jury has been impaneled and sworn, or after a judge sitting as the trier of facts begins to hear the evidence. Hunter v. Wade, 169 F.2d 973, 975 (CA 10, 1948), aff'd 336 U.S. 684, 69 S.Ct. 834, 93 L. Ed. 974 (1949).

2) Co-defendant's plea of guilty in jury's presence.

Kimbrew and co-defendant Warrex were tried together. Shortly after the government's opening statement and after several witnesses had testified, Warrex, through his attorney, indicated to the presiding judge that he wished to change his plea from not guilty to guilty. The plea of guilty was made in open court, before the jury. Counsel for...

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17 practice notes
  • U.S. v. Beasley, No. 74-1338
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 5, 1975
    ...is obvious . . ." Hudson v. North Carolina, 362 U.S. 697, 702, 80 S.Ct. 1314, 1317, 4 L.Ed.2d 1500 (1960). See United States v. Kimbrew, 380 F.2d 538, 540 (6th Cir. 1967); United States v. Dardi, 330 F.2d 316, 332-333 (2nd Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 Page 240 L.Ed.2d ......
  • Brant v. Scafati, Misc. Civ. No. 68-83-J.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 11, 1969
    ...50, 13 L.Ed.2d 50, and, Gravis v. United States, 1964, 379 U.S. 869, 85 S.Ct. 117, 13 L.Ed.2d 73; United States v. Kimbrew, 1967, 6 Cir., 380 F.2d 538, 540. "The potential prejudice of such an occurrence is obvious * * *." Hudson v. North Carolina, 1960, 363 U.S. 697, 702, 80 S.Ct. 1314, 13......
  • Blondes v. State, No. 43
    • United States
    • Court of Appeals of Maryland
    • January 9, 1975
    ...133 U.S.App.D.C. 271, 410 F.2d 259, 260, cert. denied, 396 U.S. 868, 90 S.Ct. 132, 24 L.Ed.2d 121 (1969); United States v. Kimbrew, 380 F.2d 538, 540, 3 A.L.R.Fed. 438 (6th Cir. 1967); Dortch v. United States, 203 F.2d 709, 710 (6th Cir.), cert. denied, 346 U.S. 814, 74 S.Ct. 25, 98 L.Ed. 3......
  • U.S. v. King, No. 74-2004
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 16, 1974
    ...pleas of guilty were not to be considered as evidence of defendant's guilt); see also United States v. Kimbrew, 6 Cir., 1967, 380 F.2d 538, 540; Casados v. United States, 5 Cir., 1962, 300 F.2d 845, 848-849, cert. denied, 373 U.S. 938, 83 S.Ct. 1543, 10 L.Ed.2d 693 (1963). For all these rea......
  • Request a trial to view additional results
17 cases
  • U.S. v. Beasley, No. 74-1338
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 5, 1975
    ...is obvious . . ." Hudson v. North Carolina, 362 U.S. 697, 702, 80 S.Ct. 1314, 1317, 4 L.Ed.2d 1500 (1960). See United States v. Kimbrew, 380 F.2d 538, 540 (6th Cir. 1967); United States v. Dardi, 330 F.2d 316, 332-333 (2nd Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 Page 240 L.Ed.2d ......
  • Brant v. Scafati, Misc. Civ. No. 68-83-J.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 11, 1969
    ...50, 13 L.Ed.2d 50, and, Gravis v. United States, 1964, 379 U.S. 869, 85 S.Ct. 117, 13 L.Ed.2d 73; United States v. Kimbrew, 1967, 6 Cir., 380 F.2d 538, 540. "The potential prejudice of such an occurrence is obvious * * *." Hudson v. North Carolina, 1960, 363 U.S. 697, 702, 80 S.Ct. 1314, 13......
  • Blondes v. State, No. 43
    • United States
    • Court of Appeals of Maryland
    • January 9, 1975
    ...133 U.S.App.D.C. 271, 410 F.2d 259, 260, cert. denied, 396 U.S. 868, 90 S.Ct. 132, 24 L.Ed.2d 121 (1969); United States v. Kimbrew, 380 F.2d 538, 540, 3 A.L.R.Fed. 438 (6th Cir. 1967); Dortch v. United States, 203 F.2d 709, 710 (6th Cir.), cert. denied, 346 U.S. 814, 74 S.Ct. 25, 98 L.Ed. 3......
  • U.S. v. King, No. 74-2004
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 16, 1974
    ...pleas of guilty were not to be considered as evidence of defendant's guilt); see also United States v. Kimbrew, 6 Cir., 1967, 380 F.2d 538, 540; Casados v. United States, 5 Cir., 1962, 300 F.2d 845, 848-849, cert. denied, 373 U.S. 938, 83 S.Ct. 1543, 10 L.Ed.2d 693 (1963). For all these rea......
  • Request a trial to view additional results

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