White v. United States
Decision Date | 24 June 1968 |
Docket Number | No. 24674.,24674. |
Citation | 396 F.2d 822 |
Parties | Jewell Greenberry WHITE, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Walter Wingfield, C. Ronald Ellington, Atlanta, Ga., for appellant.
Charles B. Lewis, Jr., Asst. U. S. Atty., Charles L. Goodson, U. S. Atty., for appellee.
Before JOHN R. BROWN, Chief Judge, BELL, Circuit Judge, and HOOPER, District Judge.
This is an appeal from a judgment of the United States District Court for the Northern District of Georgia sentencing appellant to thirty (30) months imprisonment upon the verdict of a jury finding him guilty of violating five (5) different Internal Revenue laws, four (4) of them being felonies and one (1) being a misdemeanor.
There are only two specifications of error, which are discussed below:
(1) Error is specified in that "the District Court erred in depriving appellant of his right to be represented by separate counsel." As to this alleged error the record discloses substantially the following:
Upon arraignment and in response to inquiry by the trial judge appellant White and one of his codefendants, McPherson, requested appointment of counsel, whereupon the Court appointed trial counsel to represent both defendants. Apparently no suggestion was made by anyone concerning any conflict of interest upon the part of counsel, which conflict later appeared under circumstances below discussed.
While upon the witness stand under cross-examination by defense counsel, T. W. Wilson testified that Mulkey, another defendant, had admitted ownership of the still in question and employment by him of both the appellant and McPherson, whereupon the following occurred:
Co-defendant McPherson while on the witness stand testified that he was not working at the still, but that appellant White was working at the still and was being paid by the barrel for liquor produced. Appellant's counsel did not move for a mistrial or for other relief but proceeded with the trial of the case wherein McPherson was acquitted but appellant convicted on all five counts.
Although the trial judge was not requested to make a ruling this case falls within that class of cases where error should be noted by this Court regardless of that fact. See Hormel v. Helvering, Commissioner, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037(3) (1941).
In the instant case, however, the prejudice is apparent. When McPherson, seeking to absolve himself, sought to place all the guilt on appellant (his co-defendant), there was a duty on the part of appellant's counsel to cross-examine McPherson, and if possible, to impeach his testimony. This was a duty he could not possibly perform because McPherson was also his client.
No principle of law is more firmly established in our jurisprudence than the principle which proclaims that the assistance of counsel guaranteed by the Sixth Amendment to the Constitution contemplates that such assistance be unimpaired by a court order requiring the one lawyer to simultaneously represent conflicting interests. See Glasser v. United States, 315 U.S. 60, at p. 71, 62 S.Ct. 457, at p. 465, 86 L.Ed. 680, at p. 699 (1942). As stated by that court:
See also Sawyer v. Brough, Warden, 358 F.2d 70 (4th Cir. 1966) wherein the court stated in part:
(See p. 73)
See also McKenna v. Ellis, Director, 280 F.2d 592 (5th Cir. 1960) and Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1957).
under certain circumstances commits a crime. The violation of that statute is alleged in the indictment.
The question at issue is whether or not the terms "mash, wort, or wash, fit for distillation, or for the production of distilled spirits" including apples, which have been mashed (referred to sometimes as fruit pomace), provided the same are fit for distillation or production of spirits.
This fruit pomace in the instant case had fermented to the extent of having six per cent alcohol.
It is true that in almost all instances where the word "mash" is defined, the definition contemplates a product made from some type of grain, and not fruit.1
The distinctions between that case and the instant case are readily apparent.
The legislative history of 26 U.S.C. § 5601(a) (7) would also indicate a Congressional policy to broaden rather than to narrow the term "mash."
In former years "distilled spirits" was a substance "which is commonly produced by the fermentation of grain, starch, molasses or sugar, including all dilutions and mixtures of this...
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