Way v. United States
| Decision Date | 27 December 1960 |
| Docket Number | No. 6562.,6562. |
| Citation | 285 F.2d 253 |
| Parties | Theodore WAY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William E. Shade, Denver, Colo., for appellant.
Charles M. Stoddard, Asst. U. S. Atty., for the District of Colorado, Denver, Colo. (Donald G. Brotzman, U. S. Atty., for the District of Colorado, Denver, Colo., was with him on the brief), for appellee.
Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges.
Appellant was found guilty of conspiring with others to unlawfully and burglariously break and enter a named bank, the deposits of which were insured by Federal Deposit Insurance Corporation, for the purpose of stealing money of the bank in excess of $100; for the purpose of carrying away money of the bank in excess of $100; and for the purpose of receiving, possessing, concealing, storing, bartering, selling, and disposing of money of the bank in excess of $100, knowing it to have been stolen. He was sentenced to imprisonment, and the cause came here on appeal.
The judgment is challenged on the ground that perjured evidence was adduced before the grand jury which returned the indictment. Two persons named in the indictment as co-conspirators but not named as defendants testified at the trial. Both testified that they were witnesses before the grand jury. One testified that he gave perjured testimony before the grand jury. The other did not testify that his testimony before the grand jury was untrue. It may be that an indictment is not open to challenge upon the ground that perjured testimony was adduced before the grand jury. And it may be that if an indictment is open to challenge on that ground, it must be raised by motion, plea in abatement, or otherwise, in advance of trial. But it is unnecessary to explore those questions. It is enough to say that since it affirmatively appears that the grand jury had before it other evidence on which it may have acted in returning the indictment without giving any weight or credence to the perjured evidence, the indictment is not open to challenge on the ground that perjured testimony was given before the grand jury. Anderson v. United States, 8 Cir., 273 F. 20, certiorari denied, 257 U.S. 647, 42 S.Ct. 56, 66 L.Ed. 415; Laska v. United States, 10 Cir., 82 F.2d 672, certiorari denied, 298 U.S. 689, 56 S.Ct. 957, 80 L.Ed. 1407.
Error is predicated upon the action of the court in denying a motion to dismiss the jury panel for the reason that appellant was brought into court handcuffed. It is fairly apparent from the record that without any order from the court, appellant was at one juncture brought into court handcuffed. But it is further fairly apparent from the record that the...
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