United States v. Smith

• Decision Date: 11 May 1962
• Docket Number: No. 8491.,8491.
• Citation: 303 F.2d 341
• Parties: UNITED STATES of America, Appellee, v. Robert Jack SMITH, Appellant,
• Court: U.S. Court of Appeals — Fourth Circuit

303 F.2d 341 (1962)

UNITED STATES of America, Appellee, v. Robert Jack SMITH, Appellant,

No. 8491.

United States Court of Appeals Fourth Circuit.

Argued March 19, 1962.

Decided May 11, 1962.

Robert G. Doumar and W. Farley Powers, Jr., Norfolk, Va. (Court-assigned counsel), for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on the brief), for appellee.

Before BOREMAN, BRYAN and BELL, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge.

Error is laid to the District Court's charge in the conviction of Robert Jack Smith of rape. The submission was faulty, the appellant stresses — and we too think — in dealing with the weight to be accorded the prosecutrix' testimony, and in admonishing the jurors with regard to their duty to reach a verdict.

The District Judge charged:

"If you believe beyond a reasonable doubt that the testimony of Betty Carolyn Kolb the prosecutrix was not so inherently incredible or so contrary to human experience or usual human behavior as to render it unworthy of belief, then the testimony of the prosecutrix, even if uncorroborated, is sufficient to support a conviction if all other elements of the crime have been proven beyond a reasonable doubt."

Error inadvertently crept in here. The jury should have been told simply that the testimony of the complainant ought to be scrutinized carefully but that it may be accepted though uncorroborated if, after considering the entire evidence, including the inherent credibility or incredibility and the probability or improbability of her testimony when viewed in the light of all pertinent circumstances, the jury believe beyond a reasonable doubt that her testimony is true; and that if they accept her testimony, the jury may convict on it alone, if after considering any and all evidence to the contrary they believe beyond a reasonable doubt that the defendant committed the alleged crime as comprised of all the elements outlined by the court.

The quoted sentence limited determination of the worth of her word to its intrinsic features, neglecting extrinsic factors. The witness' testimony could have been "not so inherently incredible * * * and not so contrary to human behavior as to render it unworthy of belief", and yet not warrant a conviction. Additional and equally important — perhaps decisive — considerations in the evaluation of her account were adduced, such as her character and the discrediting evidence of other witnesses.

More seriously, even if it met all the exactions of the charge, in view of the considerations just mentioned her evidence could well have been simply preponderant — of lesser degree than "beyond a reasonable doubt". But the jury were told imperatively that, if it satisfied the criteria stated by the court, her testimony convicted.

These faults in the charge resulted in impermissible infringements upon the jury's sphere, gravely imperilling the defendant. Their practical effect was to oblige him affirmatively to disprove the prosecutrix: her testimony, if qualifying under the incomplete conditions named in the charge, established a prima facie case for conviction.

After the jury had deliberated for two hours and 40 minutes following the two or three days of trial, and without indication from them of any inability to agree, the Court recalled the panel. Sua sponte, it delivered what is commonly known as the "Allen charge", admonishing each juror of his obligation to listen to and learn of his fellows' views before firming his own resolve of an issue. See Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

We have had occasion to approve this instruction and slight variations. Rhodes v. United States, 282 F.2d 59 (4 Cir. 1960); Orton v. United States, 221...