Opinion
No. 9958.
January 8, 1969.
Howard F. Heffron, Oklahoma City, Okla., for appellant.
David A. Kline, Asst. U.S. Atty. (B. Andrew Potter, U.S. Atty., with him on the brief), for appellee.
Before MURRAH, Chief Judge, and HICKEY and HOLLOWAY, Circuit Judges.
Earl Robert Hall was found guilty by a jury verdict on a charge of using a deadly weapon in a forcible assault on a federal officer in violation of 18 U.S.C. § 111. He appeals from a ten year sentence alleging insufficiency of the evidence to show that a deadly weapon was used to assault a federal officer and bias on the part of the trial judge in the imposition of the sentence.
The basic facts are undisputed. On the evening in question Special Agent Robert E. Hutchings of the Federal Bureau of Investigation accompanied by Lt. Francis Watkins, a police officer of the City of Chickasha, Oklahoma, went to a college campus located in Chickasha to interview Hall who was returning his date to her dormitory. When Hall arrived with his date Hutchings accosted him, identified himself and told him that he wished to interview him concerning a matter then under investigation. Hall, followed by Hutchings, escorted his date to her dormitory door. After the young lady entered her dormitory Hall turned and attacked Hutchings. State Officer Watkins had parked his car and was approaching the door as Hall attacked Hutchings and immediately went to Hutchings assistance. A struggle ensued.
During the struggle Hall in some way got Watkins' gun and threatened to shoot unless he was released. The testimony on this by Hutchings and Watkins is not the same. Hutchings testified "I recall Hall stating, `Let me up, or I will shoot'," while Watkins' version was that Hall said "Turn me loose, or I'll kill him." Watkins further testified that immediately after this statement the gun hit him in the stomach, he reached down and moved the gun away from him and it was discharged. Neither officer was hit. Throughout this portion of the struggle Hall held the gun. Counsel for Hall rather ingeniously argues that the trial court erred in submitting to the jury the issue of assault on a federal officer with a deadly weapon. The argument is that the government's evidence at most shows that the assault with a deadly weapon was committed on Watkins — a state officer — not the federal agent, and in no event was the evidence sufficient to justify a jury finding that the assault with a dangerous weapon was committed on the federal officer.
The applicable statute provides, in substance and effect, that whoever in the commission of a forcible assault upon any statutorily designated person (including Special Agents of the FBI) "uses a deadly or dangerous weapon" shall be punished as provided in the Act, 18 U.S.C. § 111.
In its instructions to the jury the court abstractly defined assault as any "intentional display of force such as to place the victim in reasonable apprehension of immediate bodily harm." The jury was then abstractly instructed that "A person who in fact has the present ability to inflict bodily harm upon another by the use of a dangerous weapon, and willfully threatens or attempts to inflict bodily harm upon such person, may be found guilty of forcibly assaulting such person with a dangerous weapon." No objections were made to these instructions and nowhere in the record did counsel urge his present argument to the trial court. Nor are we referred to any case to the effect that the threat to use the dangerous weapon is an essential ingredient of the offense charged.
The evidence is entirely sufficient to support the findings implicit in the verdict that Hall forcibly assaulted Hutchings; that Hall had in his possession a deadly or dangerous weapon; and that he used it, i.e. he discharged it, and in doing so he attempted to inflict bodily harm upon the person assaulted, i.e. Hutchings.
Cf. United States v. Heliczer, 373 F.2d 241 (2nd Cir. 1967) cert. den. 388 U.S. 917, 87 S. Ct. 2133, 18 L.Ed.2d 1359.
Hall next complains that the 10 year sentence was prompted by "deep seated passion and prejudice" on the part of the trial judge. As evidence of this bias he points to the court's comments when commending the jury on its verdict:
"I think you have rendered a very wise verdict in this case. I think both these officers would be dead today, if it were not for the luck of these policemen grabbing that gun, and I commend you, I admire you for reaching the verdict you have reached."
Of course, impartiality on the part of judge and jury is the goal and rule of our judicial system. But there is certainly nothing improper in these remarks and statements when made after the jury returned its verdict. They merely characterize the judge's view of the seriousness of the offense and the culpability of the offender. If they have any significance, they go only to the reasons for the sentence which the court subsequently imposed. The sentence was within the limits of the statute and it is invulnerable to attack here. Cooper v. United States, 403 F.2d 71 (10th Cir. 1968); Smith v. United States, 273 F.2d 462 (10th Cir. 1959), cert. den. 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729.
Judgment affirmed.