Webb v. United States
| Decision Date | 26 July 1968 |
| Docket Number | No. 25550.,25550. |
| Citation | 398 F.2d 727 |
| Parties | Clinton W. WEBB, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Howard B. Pearl, Ocala, Fla., for appellant.
Samuel S. Forman, Asst. U. S. Atty., Jacksonville, Fla., for appellee.
Before WISDOM and COLEMAN, Circuit Judges, and RUBIN, District Judge.
The sole issue in this appeal is whether, under the circumstances hereinafter related, the District Judge committed reversible error in giving the jury a version of the Allen charge after it had deliberated for two hours and ten minutes. We are convinced that it would have been better practice not to have given the charge when it was given but we likewise believe that it resulted in no prejudice to the appellant, so we affirm the conviction.
The appellant was convicted on a one count indictment which charged him with the transportation of a stolen motor vehicle from Atlanta, Georgia to Sumter County, Florida, in violation of 18 U.S. C.A. § 2312. The testimony for the prosecution, if believed by the jury, justified a verdict of guilty. The testimony for the defense sought to establish that at the worst the defendant could have been guilty of no more than a transportation committed at a time when he was stone drunk and unaware of what he was doing.
The selection of the jury and the testimony of the witnesses consumed only an afternoon. Court reconvened at 9:55 the next morning. After argument of counsel and the jury charge were completed the case was submitted to the jury at 10:55 A.M. By 1:05 P.M. the jury had made no announcement as to a verdict. It was called to the courtroom and sent to lunch, with instructions that the case was not to be discussed during the lunch hour. At 2:10 P.M. the Judge informed counsel, out of the presence of the jury which had just returned from lunch, that he intended to give the charge hereinafter quoted. Counsel for the defendant objected, saying that . An additional objection was that "We have no evidence certainly from any question brought to us out of the jury room that they have been discussing punishment as a factor in arriving at their verdict as to guilt or innocence, and, therefore, at this time, I respectfully submit that it is not yet appropriate". The Judge responded that since the jury had been out for about two hours and fifteen minutes without returning to the courtroom it would seem appropriate to him that the charge should be given, so the objection was overruled.
The jury retired at 2:30 P.M. after receiving the following supplemental charge:
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