George Krull and Michael Krull v. United States

details disclosed the- TUTTLE, Before CAMERON and required properly record than to dis- Judges. JONES, Circuit pose questions which we are called upon to decide. Judge. JONES, Circuit George appellants, repre- for Michael Krull Krull and Counsel who charged single Krull, ap- were in a him at his trial and Michael sented on this appointed September peal on indictment with these offenses: trial, They he case was called for counsel him while conferred Michael for a con- prison as thé moved on his behalf known was confined in a tinuance, asserting presence of Michael Thereafter Fulton Tower. refusal the officer in room and the Peni- the Federal Krull was removed to requested assigned so tentiary rea- the officer to leave when for the at Atlanta deprived denied or right Michael Krull of attempted escape. re- thisOf son of an guaranteed by the to him to counsel were told Michael the counsel for moval Attorney Sixth to the Constitution ad- who the United States Amendment The motion was de- United States. client see their vised that counsel could ruling assigned error. anything nied and the penitentiary and if regard at the satisfactory interview- not ing right appellant, which him, let the United their client to Krull, Michael seeks to invoke is one Attorney, The case was know. 'States guaranteed by the Bill those which are trial commenced set for trial Monday, Rights. prosecutions, “In all criminal days January Five * ** right enjoy the accused shall January Wednesday, date, on before to have the Assistance of for his Counsel Michael went to the counsel for defense”. U.S.Const. Amend. The VI. him,- penitentiary for an interview with investiga consultation, aid of counsel brought in room about to them a He was preparation tion and trial in crim for a long. twenty feet feet wide and rtwelve necessary presence inal case is as as the Krull, appellant, and his Michael The participation of counsel at the trial at one end conferred a table (cid:127)counsel at Alabama, itself. Powell v. State of 287 end of the at the (cid:127)of the room while other 45, 55, 158, U.S. 53 S.Ct. 77 L.Ed. 84 facing them, room, at a table and seated 527; Mayo, A.L.R. House v. 324 U.S. Federal Correctional Officer. was a 42, 739; 617, 65 S.Ct. 89 L.Ed. Hawk v. and he asked the officer to leave Counsel Olson, 271, 166, 326 U.S. 66 S.Ct. 90 L. orders, required replied him to that his United, ’ 61; Venuto, Cir., Ed. v. States 3 stay. in a low to Counsel talked tone 1950, 519; 182 F.2d Thomas v. District forty-five minutes to an Michael for Columbia, 1937, U.S.App.D.C. 179, 67 They asked client all of the hour. (cid:127)questions their 424; Shapiro 90 F.2d v. United they if would have asked the 1947, F.Supp. 205, 650; 69 107 Ct.Cl. They (cid:127)officer had not been the room. Hudspeth, D.C.Kan., McDonald v. 41 F. they the officercould stated that believed Supp. 182. report them. No have overheard prosecution is not entitled to anything there said was interview representative present have a at a con Attorney or to made to the United States an ference between accused and his coun for of his assistants. Counsel Cop their sel to overhear conversation. request made no of the warden Michael States, 1951, U.S.App. lon v. United 89 peni- supervisory official at the or other tentiary 103, 749, D.C. 191 F.2d certiorari denied private for a conference with 926, 363, 690; 342 U.S. 72 S.Ct. 96 L.Ed. client; complaint no made to their States, D.C.Cir., 1953, v. United Caldwell Attorney who had re- the United States 879; F.2d Coop 205 United States ex rel. anything quested if that he told Denno, Cir., 1955, 2 626, er v. 221 F.2d satisfactory respect in- to not 968, certiorari denied 349 U.S. 75 S.Ct. terviewing their client. At the trial 906, 99 L.Ed. United States v. for Michael said that he counsel one of Lebron, 1955, Cir., 531, 222 F.2d certi purview matter was not felt 876, orari denied 355 U.S. 76 S.Ct. Attorney. Counsel the United States . 100 L.Ed. 774 application to no ’made Judge providing for an order for a right of an accused to con stated private attorney Counsel , private interview. his sult is not one gone thought far he “had as the some he without limitations. It was held go”. Court, in required When the a case him where an taw accused right (the had confer with him Attorney) been denied the let United States during evening appears his counsel hope know. Thus it preserving day trial, point first appeal that: was more important showing appel- pri- to defense counsel than a “No is made that vate permitted Ample interview with lant was not to consult his client. opportunity asking sufficiently pre- pri- existed for with his counsel vate request pare defense, consultation. re- should his and reasonable private have been may imposed made if a interview strictions as to the necessary believed to be place time and or desirable. of consultation be- refusing There grant was no attorney error in tween an accused and his grant infringing continuance or to a new without constitutional trial ground rights.” Altmayer that Michael Krull Sanford, had been v. right denied the effective Cir., counsel. 148 F.2d It is here shown the statement Counts 2 and 3 stated that the offenses charged Krull he was counsel for Michael there were committed in Chick- questions amauga which would asked all of the Chattanooga Park, National place him had there have been asked of been a jurisdiction the exclusive no one in the room with them. What- of the United statute, States. The may overheard, ever the officer U.S.C.A. § makes a crime un- anything, communicated to was not the der Federal law when committed “with- ap- prosecutors. special did Government It not maritime and territorial pear jurisdiction the defense of the accused of the United States”. It any way hampered prejudiced. necessary, The became therefore, only to conferring may prove need for in a low voice charged offenses these an have been inconvenience but it did not two committed, counts were but also to infringe any right. constitutional establish the situs where committed and show that such ju- situs was within the The Michael interview between Krull risdiction of the United States. Much of Wednesday, and his counsel was a the by time consumed the intervening Government days with four before the making out its spent case pre- following of date the trial on the Mon- senting testimony of documentary sought by day. privacy Had a re- been evidence purpose offered for the of show- quest prison warden, to the or had the ing that the jurisdic- United States had Attorney United States been asked to tion over park, demonstrating the arrangements the have made for confer- a extent material the boundaries of guard the absent, ap- ence with the or had an park, proving that the offenses of plication court, been made to the trial rape were committed within its confines. may be assumed that facilities for a con- specifications There are some of error as- provided ference would have been with- signed by raising each of appellants, the anyone present out but the accused and in different form questions the same defendant, Counsel for the of his counsel. specifications law. Krull, Some by Michael stated to are the that “I raised appellants thought one of the by that since the warden had but noti- not the other. Except him, fied me that would be able to see as material to a consideration of a believing particular at time point, it was a we will not concern our- right my of constitutional defendant to which, only selves with one, thought private, I be counseled appellants presented question. the gone far I had as as the law re- It is asserted that go.” the evidence quired me to This statement was was insufficient to show that response by the offenses to a reminder made in the of were Attorney committed within of his United States the statement ter jurisdiction ritorial any- of for Michael Krull that if the to counsel thing United States interviewing because, said, about accused at is the Park never came penitentiary satisfactory was not to into existence as such. The Act of Con- tary 4, Reservations, gress purpose Exhibit show- U. S. of estab- enacted ing containing descrip- lishing Park, provided: the location a history of tion of the Park and a title ceding jurisdic- upon of “That comprising The the various it. tracts legislature by of tion State Depart- book was a War authenticated Georgia, report of of and the Certificate of the Sec- ment retary and the Seal Attorney General of United To admission War. perfect has been a title States that objections * * * these exhibits in evidence lands and secured assigned * * * made error the Court’s are here- roads embraced by rulings maps admitting them. The park,” national declared be a admitted, ap- were pellants as to show title not Aug. Act Stat. assume, to show but boundaries §2. place and to establish the location of the appellants it In the of one of brief jurisdiction over which the of the Unit- that, apparent- one is contended since no ed show was exercised so States Attorney ly not the knows whether or that the offenses were committed within perfect report a ti- General made jurisdiction of the United States. jurisdiction secured, tle been had book, assert, so the area has the United over States hearsay and no less so than it would and, seem, proved cannot been it would been without an seal. .official proved Act of without a further provision for The Judicial makes Code Congress. Officer Administrative the introduction of business records and lived its boundaries Park had within pro- papers. Government records and Its during years twenty-eight all which visions are: park employee of the he United “In court of the United States posses- He testified as States. and in court established Act area the Unit- sion and control writing Congress, any record, or right ed United States. entry of an whether the form jurisdiction so after to exercise States otherwise, a book made a mem- long or dimin- cannot defeated time any act, orandum record of trans- proof the absence of ished action, occurrence, event, shall be Attorney approved the title. We General act, admissible as evidence of such giving re- of the title do not think transaction, occurrence, event, or if precedent port to the vest- is a condition regular any made in of course busi- ing jurisdiction in United States. of ¡was regular ness, and if it course requirement, will such a If there be such make of business to such mem- lapse presumed, a of such after the or at the orandum record time of during long period which of time act, transaction, occurrence, such or a de facto has exercised United States or within event a reasonable time area, re- jurisdiction over the thereafter. 174, Evi- port Am.Jur. made. 20 other “All circumstances of the dence, §§ making writing record, of such or including knowledge personal introduced lack The United States of map, maker, may Exhibit show U. S. the entrant or in evidence weight, ing Park. It was of the to shown affect its such the boundaries but supervising draftsman shall not circumstances affect its identified Engineers admissibility. Corps offi Army as an map. ‘business,’ introduced The Government term cial “The used in Park, section, business, S. Exhibit map pro- U. of the includes another fession, calling occupation, the files of the from was taken which every kind. part of the official it was a Park papers; records intro “Government The Government records. Park copies Mili- States United entitled a book duced orig- Department neers’ made from “(a) of account or records Books authority surveys any de- inal proceedings of minutes of or Department, but with- agency the War of the United partment or knowledge, prove personal in his and he re- to shall admissible States showing ferred to the titles to act, a book occurrence transaction compiled Fort under the Worden the same memorandum of which authority. same The documents re- kept. made or were us, ferred they are not before but to cop- Properly “(b) authenticated introduced, and, properly were books, transcripts rec- ies justified so far as we see can ords, papers or documents finding jury, of the even the evi- agency department of the United dence of the de exercise of ex- facto in evidence shall be admitted States jurisdiction enough, clusive was not originals equally thereof.” with the or if the United was called on States 1732, 1733. 28 U.S.C.A. §§ try title a murder case.” Holt kind con- evidence admitted is v. United 218 U.S. templated by the Code. 2, 6, S.Ct. L.Ed. presentation of the Govern- In their The rule as announced the Holt deci- apparent applicable ment’s case it was sion here. The doctrine of attorneys applied by Holt case was were anxious to followed United States might everything this Court in a opinion case. murder From the be re- produce quote: we They quired had venue. establish opinion of plaintiff them and followed the before “The in error also as- who, signs disposing upon Justice Holmes error Mr. based the action of objections permitting similar like evidence District cer- here, tain we consider said: deeds and other muniments of go prop- title to without objections “Several were taken to proof er of their execution. The sufficiency of admission and evi- possession, United States merely an at- dence. first through contractors, engaged in ex- tempt to raise technical difficulties cavating post office, for a of the land really no a fact which one about where the murder committed doubts; namely, the band bar- when it was committed. The de- place racks, undisputed himself fendant was a contractor crime, ju- within exclusive government, under the and claims to A risdiction the United States. rightfully premis- have been testified that were with- witness es, Hermes, when he killed virtue Worden, in the inclosure of un- Fort government. of that relation to the guard military control, and from der orally The witness described the persons which all unauthorized are place killing post of the as the of- excluded, and that he knew that the fice site. In record, this state of the fence was coincident with the bound- government required the prove was not to map objected aries shown on a to title, its as in an action of but admitted. He identified the band trespass, and the introduction of the as in barracks described certain con- deeds and title documents could not proceedings. demnation The State injured defendant, the wheth- Washington of had assented stat- technically proven er or not.” proceedings to ute such and Con- Brown v. Cir., 1919, United 5 gress had them. authorized The 46, 257 F. proceedings deeds condemnation probably enough, which It the United States claim- would for the dispelling purpose ed title of were introduced. The wit- doubt as to the part upon jurisdiction ness relied in the of the States correct- United over the Engi- express maps Park, of in ness official to refer the to determina- 130 mony Supreme monuments as of question to the location

tion holding Objection made was and boundaries. of the United States. testimony that, was such the extent is: given map, the testi- with to a reference of the Park “The administration mony hearsay should have been was Depart- placed the War was with testimony properly was excluded. The ment, appears its files from and it appear there received. did not that It 1930, upon July 14, a review that any question of to the location was as legislation, pertinent of Judge contrary they the boundaries. On gave an Advocate General established. seemed to have well been opinion of ‘vests that the Act 1927 question dis- as was one jurisdiction in United exclusive puted boundary an offense whether but part of Chick- that States over amauga or without was committed within Chattanooga National testimony boundary. Oral is admissible Military Park located within boundaries, partic- to monuments and as Georgia’ of that violations State ularly property public as of a nature. occurring law lands on the ceded Lessees, 6 Ford’s Boardman v. Reed & proper only are enforceable 327, 327, 8 L.Ed. Pet. 31 U.S. authorities the United States. Surveying Boundaries Clark § As this construction administrative permissible per- it one we find suasive and we think de- that witnesses located One of the question jurisdiction bated should being one of offenses the situs of construing settled the Act of 134 that within Land Lot No. and stated way.” the same Bowen v. testify its boundaries both he could by as to Johnston, U.S. S.Ct. maps intro reference one 447, 83 L.Ed. 455. independent duced evidence and map. introduced The United States af In recent case this court files and records appeal evidence the court was firmed a conviction where the whereby proceedings single ground the condemnation the United that sought acquired to Land title was to be prove the offense failed to that States papers No. condemnation Lot 134. The “special terri committed within the deposited showed that funds registry jurisdiction of the United States.” torial payment court There was said: being land tak former owner whose quite clear “We think affirmatively it is not shown en. Because assignment merit. Put- is without former owner received the ting of this decision side the to one urged award, there was no it is States, 5 United in Brown v. acquired proof title was and error if, Cir., was the F. admitting the evidence. was committed place here, the of- where case right appellants to raise sufficiently was committed fense not, doubtful, point is whether so but judi- described, will take the court sup It is merit in it. cannot there no vest which notice facts cial property posed an owner could jurisdiction, States United by declining condemnation defeat overwhelmingly, indeed con- record clusively, deposited registry in the funds withdraw jurisdic- establishes duty of the a court. The United Hudspeth v. facts.” United tional payment to make to the owner States States, Cir., 223 F.2d 848. 5 discharged by payment into was no failure of the United States There Dunnington, v. United States 146 court. jurisdiction over the its Park. to show 338, 13 79, 36 L.Ed. Unit S.Ct. U.S. Land, Acres employees 412.715 Park v. D.C. were ed States called F.Supp. 576; N.D.Cal.1945, 60 Brazos for United Ob witnesses States. parol and Reclamation Dis- jection made to their testi- River Conservation 307, 143 Costello, prior fixed trict v. 135 Tex. S.W.2d in man- statutes 577, 130 ner: A.L.R. 1220. knowingly “Whoever shall trans- of Title Prior to the 1948 revision port transported, or cause or to be Code, pertinent the United States transporting, aid or abet in in inter- dealing penalties for statutes with the foreign any commerce, per- or state rape as follows: the crime of unlawfully son who shall have been crime “Whoever shall commit * * * * * * kidnaped, shall, rape 18 U.S. shall suffer death.” upon conviction, punished (1) by (1946 Ed.) 457. C. § jury if death the verdict of the shall “In all where the accused cases recommend, provided so guilty found of murder crime sentence of death shall not be im- rape, degree, in the first posed if, prior the court to its adding may qualify their verdict imposition, kidnaped person has punish- capital thereto ‘without unharmed, (2) been liberated or apply if ; jury shall ment’ and whenever penalty the death shall not nor qualified afore- return said, verdict imposed person the convicted shall person convicted shall be punished by imprisonment be penitentiary in the imprisonment sentenced for life.” years for such term of (1946 Ed.) U.S.C. § as the its discretion shall (1946 Ed.) determine.” 18 U.S.C. provisions In the 1948 enactment these 408a. §

were rewritten and now read: provision The new is: “Whoever, special within the knowingly transports “Whoever jurisdiction maritime and territorial foreign commerce, any interstate or States, United commits person unlawfully who has been seiz- death, imprisonment shall suffer ed, confined, inveigled, decoyed, kid- years for term of or for life.” naped, abducted, away or carried 18 U.S.C.A. 2031. § and held for ransom or reward or special “Within the maritime and otherwise, except the case of a jurisdiction territorial of the United minor, by parent thereof, shall be punished (1) by if death the kid- guilty naped “Whoever is person of murder in has not been liberated degree, unharmed, the first shall suffer death and if the verdict of the jury qualifies unless the recommend, its verdict (2) by shall so adding capital imprisonment thereto years ‘without for term of punishment’, life, penalty which event he shall or for if the death imprisonment imposed.” be sentenced to 18 U.S.C.A. § life;” 18 U.S.C.A. 1111. § At the trial Attorney the United States position change took the Under the criminal code as it existed be- permit statute did no more than a sen- revision, punishment fore the years tence for a term as well as the degree pre- for murder first imprisonment of death or life in these words: scribed provided. which the former act guilty “Every person of murder in jury, Government’s view was that the degree shall suffer the first death. agreed upon guilt, pun- should fix the guilty Every person of murder in imprisonment; ishment at death or degree imprison- shall be the second imprisonment if was fixed for it then years may less than ten ed not function became the of the court to fix imprisoned for life.” 18 U.S.C. term, years the either for a number of Ed.) (1946 § life. For or for Michael Krull it was transporting penalty urged in inter- before the District Court that in kidnapped person guilty commerce state was jury the event of a verdict the case, punishment would complete but that; discretion vested full and with by Court, death, im- have to be fixed penalty life the as to the whether prisonment, imprisonment for a term in the Court’s own discretion within or George by by limits as fixed law.” years. the contended of It Krull before the District George charge. excepted Krull to the rape prerogative jury to the had no jury guilty returned a of verdict except of a verdict return counts against penalty both defendants by guilty guilty. this Confronted or not kidnapping imprisonment life on the charged: trilemma, the court on the of death count and the your prepared for has been “There rape their verdict. inserted in counts reads as form here which verdict a appel- both of the Court sentenced jury, ‘We, find the de- follows: imprisonment on the kid- lants to life napping Krull’, fol- and then Michael fendant rape count and death by space, lows followed a blank portion of the sentences counts. In language [kidnapping]’, ‘on count Krull, Michael was said: it by’, punishment then ‘and fixes having jury said “The found the you If find another follows blank. guilty Krull of the offense Michael guilty Michael Krull the defendant under Two and under Count 1, you would write under Count indictment, Three of Count said ‘guilty’ blank, and in such a word without recommendation following pun- words, ‘and fixes sentence, having life penalty fixed but by’, by you fill ishment would that death, at is ordered and ‘death’, putting if in there the word adjudged that shall said defendant by death, you punishment or fix his punishment suffer of death you after write in there would ". * * * by’, ‘punishment the words word you imprisonment’. language not If do ‘life the same George A like sentence ‘pun- anything words imposed upon write after the Krull. On duty by’, be the day imposing ishment it would sentences the imprison- omitting term of which, to fix the court an order Court entered within the Krull parts, ment of Michael is as follows: formal and maximum limit minimum “Counsel for defendants by there provided law. Likewise f position have taken the this case immediately the fore- after follows present status of the language, going, ‘And we find fixing penalties for law the various George Krull’, defendant, follow- entirely rape, crime with- by blanks, and in the same two ed of the court as to discretion way you put blank in the first would conviction, upon a a defend- whether guilty’. ‘guilty’ In ‘not the word or given by death electro- ant should ‘pun- you put blank would the second given sentence, or a life or cution by ‘punishment by ishment death’ years. to a term sentence by punishment imprisonment’ or life “In the above stated cases leaving neither, This that blank. charge jury its court in di- type to Mi- of verdict as the same they rected the should if George Krull on Krull chael they guilty, found the defendants Krull], [Rape Michael Count punishment prescribe either death George [Rape Count 3 on sentence, and, penalty or life Krull], ex- and also Count punishment fix desired to less cept with the connection sen- sentence, punishment life than punishment’ under ‘or Count tence be left to Court. automobile, is theft of the which way' you concerned one “The did either fix as will a mat- law, punishment in did with the ter recommend the another posed, then would seem that there it penalty to both defendants as death any question. I don’t be wouldn’t Counts. each two on by that court should mean that the purposes the of this sentence “For any that, order avoid do Just treating penalty death the is question, I think that because don’t only jury by a rec- imposed as as the I think if the does is correct. court im- will the Court and ommendation jury, approve not the verdict the upon the- penalty the pose death the regardless is, of what the statute merely ory jury recommend- the that stand, that he not let should it law, fix as a matter ed did and not ****** penalty. the death ‘ Well, now, let’s look at it this that be considered “Even should it way: Of course if the influ- court penalty jury fix death the did the jury improperly ences a that is re- law, neverthe- it would a matter of hand, error. versible On the other duty to ei- of this Court less the be surplusage, I should rule is this disapprove approve that ver- ther question then the is whether the diet, feel Court should and if this being by jury, court is influenced the penalty a death in this case that I’ll say ques is real not imposed, would be not it should be tion, way, and I’ll illustrate it this duty in some man- of the Court every that this court and other court by law remove the ner authorized frequently jury has had a to find the penalty. death , penalty, . . extreme death . which in the ^ imposing death This Court m ,. , f court s ..... discretion the court has set doing , ., penalty account so both on ,, ,, „ ,, you . aside. I . could cite num- by imposed of the fact it was , ,, , „ . ... ber cases where I f have been con- jury :. fact that and account of the _ ,. „ proposition, . fronted .. .... and m is of the Court its own discretion ,, , ,. , ,, gave jury chair, . . . . the electric and I opinion, the case, facts this , aside, ,, , ,, felt it was severe and set ... it penalty such author- ., . I could cite number cases to lzed and the evidence under the law effect, ,, . . which . .... means there is no case, will be so m the and sentence presumption of law that because the ” entered jury penalty, recommended a death it, and court, complaining should not have done While not of the verdicts give kidnapping if he elected to and sentences on the the death penalty unduly Dyer charges, both of the influenced Act jury’s recommendation, charge now was error to I assert that it so way jury think I’ll handle fix the it should matter though upon rape and, is to hear from counsel as conviction of even to wheth- punishment er think the the verdict be treated as a recommenda- should though might just jury only tion was or have been the had noth- ing imposition pen- to do with it.” basis for the of the death alty. position Government In the absence of a statute pretty well stated for it hag jmy responsibility ^ of deter. Court m a discussion with counsel after mining cr¡mi. whether the accused in a the verdict but beiore the sentence. guilty guilty; nal case is or not Court commented: upon duty fixing the court rests the “Well, gentlemen, punishment. if I should rule Gloverv. United Cir., 1906, that the recommendation of the 147 F. 8 Ann.Cas. binding upon court, jury, is not statutory If the without authority, surplusage, it as then would treat makes recommendation for clemency, up impose pun to the court to it does invalidate may the verdict ishment, disregarded impose and if I should imposing punishment Packing same im sentence. Thlinket Co. v. Unit- 134 jury’s portions 109, Cir., 1916, 149 think those the States, We of 236 F. ed 9 Law, by impose purported 319; C.J.S., verdicts which it to 23 Criminal C.C.A. penalties rape as it for 1407, p. death the convictions the statute 1100. Under § surplusage, and treated 18 U.S.C. should be as the revision existed before finding 567, question to Ed.) the verdict as a (1946 that should stand the § guilt under person murder of the of both defendants

whether a convicted charging rape. capitally punished was the rape each of two counts should be Congress by treat It that We so it. cannot be said discretion to the committed jury the court so treated it. jury district and to alone. Win- of the the 303, States, 19 ston United 172 U.S. v. a We are confronted with 212, v. 43 L.Ed. Andres Unit- S.Ct. question as to whether should the court States, 92 ed 68 S.Ct. U.S. give consideration, determining a sen In the L.Ed. 1055. the 1948 revision tence, by jury to a recommendation a provisions punishment of murder for the leniency mercy or authorized where not degree carried forward the first were Law, C.J.S., statute. See 23 Criminal change substance, the without 1407, p. spirit 1100. The humanitarian § provision punishment kid- for the for Congress which has animated in au the that napping. intended If it had been thorizing penalties less drastic would jury have to should continue the preclude giving seem to from the court penalty part in the determination any effect to a the recommendation of rape upon imposed a conviction to be penalty, pen death the all most severe of Congress, by language used, would the States, alties. See Andres su v. United assigned jury a di- either have pra. thought possibly The district court penalty a discretion fix the rection to jury provisions penalty the verdict death court. a recommendation the to make valid; or if not valid court would the code, 18 of the new criminal The section impose theory penalty upon the death the Congress that indicates U.S.C.A. § jury only it; recommended and impris- regarded that sentence of life imposed penalty the court death both the onment, penalty, as well as the death imposed by jury because and because might provided that too severe and so be the court in its own was of discretion might imprisonment for a be term opinion penalty that was au such a Lovely Cir., years. v. United penalty The death thorized. should doing omit- F.2d 312. In so if, imposed only if the court in been qualification any reference to the ted opinion discretion was of the that its guilty. in- jury its verdict of penalty proper without such think, Congress tent, was to leave we regard giving any for or effect to that penalty-fixing court sole with relating jury’s portion of the verdict statutory limits, for power, within penalties purporting to fix the ju- rape within territorial committed counts. sentence on these of the United States. risdiction be and set so will reversed aside counts again appellants may sen in doubt The district court counts in like manner as on these tenced penal power fix whether as to guilty, cases where other verdicts jury. It ty it or with rested more, are returned. without hold, erroneously concluded, we urge penalty rather than there should fix did recommend, re trial rather than a merely could a new remand for the court re-sentencing beeanse, say, penalty. im it would The court death move put impossible on account the court to out of “both posed death imposed not be influenced the fact it was mind fact that agreed upon jury had fact that death on account of the believing empower- opin penalty while it was is of the own discretion in its agree. Objec- case, so. We do not ed to do ion, the facts in this * * * ability tivity approach reject ”. penalty is authorized such proper it to an- in the would not for me be the immaterial irrelevant swer, making ask most do not hesitate to are inherent but of decisions them, you any activity. judicial no reason to would like. There is that excep- suppose an will be that this case Any questions “The Foreman: remanding the for cause tion. might that I ask would not interfere appropriate for means is the resentence case, with would the answer it be People of of the error. the correction you give, that is that correct? Cir., 1950, Virgin Price, v. Islands Yes, “The Court: sir. F.2d 394. person “The Foreman: If is a given a life sentence in a case simi- of the think instruction We lar to the one that we are deliber- could, jury if it found the that Court ating any on, possible would it be at guilty, sentence at fix the defendants time, future or is there a certain imprisonment, or leave life death or years number that serve he has to fixing im term of Court parole, before can ask for he a prisonment, Our reasons was erroneous. possible is it for a life sentence given. for have heretofore this view been paroled? Now, this kind to ever requires error follow that the It does not up can that be cleared in the minds any Before there could be new trial. jurors? words, In other if a imprisonment death, penalty, whether rendered, life sentence is does it finding years, life, for a term of for way possible mean is no there that tendency guilt required. No any for this man to be released at the mistaken would result from convict time, future and that be for- he will jury had the sentenc belief of prison? Now, ever confined those ing power. appellants were not questions are the would like we prejudiced A reversal is error. up. to have cleared required. not parole “The Court: matter of given jury at to the February 3, 3:55 The case department is under a different afternoon of something Government, over nine ten o’clock even- Between ing jurisdic- which Courts have no jury requested the foreman might whatsoever, tion what inquire if of the Court marshal to might regard happen not in that is might as to ask and be informed wheth- something just that the would Court er, t'o were sentenced defendants if the just not to state. I able would be possi- ever be imprisonment it would life might might unable what to state paroled, and whether to be them ble for regard. not be done in that time that must be minimum there was Honor, “The Foreman: Your granted. parole could be served before stipulation there a of time that a ascertaining of counsel the views After by telephone person must serve at which time he instructed the Court parole? can ask for a jury ques- advise marshal to give “The Court: Could counsel The mar- not be answered. tions could this evening court benefit their views Later did so. shal on that? room. The recalled ally questions Sparks: May inquiry please “Mr. as to invited court, Then occurred we don’t think answered. that we should which could following colloquy: discuss that matter front of the jury. Counsel for its defense and Judge, Your Foreman: “The agree prosecution that, isn’t permitted Honor, to ask we are that correct? regarding questions that we desire Yes. “Mr. Smith: case? this may them, Suppose you ask “The Court: You ask “The Court: questions questions, Foreman, other are some which Mr. but there your verdict, you you them, re- influence and let the duty you your that it do consult I would like to tire and give you it, you see I to assume that before counsel on matter perform you others will likewise their an answer. duty proper in a manner under all might I state Foreman: “Mr. the circumstances.” major questions that ex- is the time, Honor, wheth- Your ist at this urged request It is counsel person possibility of a is a er there for their views indicated that there was receiving and not be- sentence a life requirement a as to the time be served to any ing in time released at able to be eligibility there before would for future, ex- a law if there is or parole possibility and that was a there might isting whereby a serve he parole. ¡urged It is also that the Court’s per- years and then be number that “some comment there were matters parole, there a or if to seek mitted covered law and other matters covered on time sets a certain law which by rule”, is a jury made as the were directed be releas- that he can life sentence retire, a jury to was an intimation to the practical- that covers on. I think ed applica- that law rule there were every ly question have at that we provisions fixing eligi- parole ble and fori present bility time. parole. for mat- some “The There are Court: The Fourth has said: Circuit by law, mat- and other ters covered jury nothing “The to do had expect by rule, I and covered ters punishment defendant, jury retire a let the had better we except they that under the statute go moments, into that and let’s few might decide not whether or he matter.” given capital punishment; should be charge eligibility and to as to for excused, coun- jury and Court parole years after was to fifteen be conferred, were motions for mistrial sel cloud the them issue before and overruled, jury was and the and made open way compromise ato ver they in- further were thus and recalled they dict. What were to decide was by the Court: structed guilty whether defendant was or not and Gentlemen “Mr. Foreman and, so, if whether he should be thing Jury: I The same given capital punishment. Whether conveyed you the even- to earlier in paroled he should be after fifteen good, not ing, I do holds still years, given capital punish if not proper it would be think ment, they was a matter which could any- your question, to answer not decide and which should not parole, thing question about attention, have been called to their in- in law should matter not and that though they even were at told case, your verdict fluence they nothing same time that' had to it, jury has sees the Court Lovely do with it.” v. United duty im- life decide between to Cir., 1948, 169 F.2d capital punishment, prisonment, and give jury stated, they If the had fixed if do death as I and then, kidnapping imprisonment, penalty for or if it life had the the death ‘ right offenses, fix to the sentence for would these we one of as to question impose be confronted with the a sen- would Court to for the years. whether I to the Court’s But wish comment term and of a tence prejudicial seriously you, very to further instruction were er to caution might But since the fixed you that whatever ror. life im state you kidnapping prisonment your opinion, might not, if should part fixing regard had no any opinion, have be done have rape convictions, the errors parole, the law should com- Bice Bice car. ed Bice and Allen respect Court’s plained of with errors, Krulls and they followed. The car with parole, if on comments kidnapping the victim harmless. U.S.C.A. § are Rossville, stopped at a store in attacks insist Georgia, back came where Michael Krull to submit evidence was insufficient there she didn’t Bice and Allen that and told As to counts. lady any money call but could Lindbergh Dyer counts Act Act get let would dollars thousand argued no substan there was telephone. he Bice said wanted her com the offenses evidence that tial part a recommenda- no of that and made manga and Chatta mitted the Chicha “get done car and be tion to rid nooga Military Park. There National on and with it”. cars moved two being question stolen car no as to the is, direction, in the South. same by the vic taken both defendants with following car, Allen, Bice and the other Chattanooga from of their assaults tim past Oglethorpe. Al- Bice and went Georgia. in in Tennessee into Park the other car which len lost track of question Nor can there be real driving to George after Krull was still sufficiency prove of the evidence to leaving park. Ross- entered After rape by George Krull, of the victim boundary ville, miles two North of Krull, aided and abetted Michael in park, appellants in conversed the confines of the Park and this evidence foreign language. After, victim is so free from doubt that we no re feel testified, far”, Mi- “we didn’t drive too refraining luctance from a recital of get compelled chael Krull her to into testimony the sordid details of the car, back of the from which the back proved. which these offenses were removed, seat had been and made a crim- upon words, “He inal attack In her her. The contention that there was no sub- long”. me assaulted for ever so Then stantial evidence to sustain Michael Krull Michael said to his brother “I’m rape George Krull’s conviction of and through you her, her”. do want aiding abetting Krull’s conviction of down, perhaps stopped, The car slowed presented 2 Count is with more changed places; Mi- brothers plausibility. driving George car chael Krull testimony From which the attacking criminally Krull the victim. believe, appeared entitled to park Bice and Allen drove around the Krull had brothers arrived Chatta- upon and came the other automobile on nooga days four before the occurrences Snodgrass park Hill which is of and here related the car in com- about four and a half miles from Ross- pany with Edward Bice. In Chatta- upon ville. The attack the victim nooga stepbrother, Allen, Bice had a Paul George Krull complet- had not then been paraplegic amputee. who was a The four George ed. Krull took the victim from riding Chattanooga of them were around again the car and made an assault of driving. in the Bice car with Bice Mi- upon her. George chael had a knife. borrowed Allen’s knife. had an proof This is the from which argument between themselves and left required determination on the suffi along slowly. the car. Bice drove ciency of the evidence on Count 2 of the upon Krulls came longer the victim a car be- open indictment. It no longing point to her question brother. At the George knife in the hands of Krull she “The verdict must be was threatened with death if she scream- if there sustained is substantial evi- George Krull ed. took the wheel taking dence, the view most favor- car, Michael Krull entered from the oth- Government, support able to the away. They pass- er side and drove States, it.” Glasser v. United 315 138 469, 457, 60, 86 L.Ed. 62 S.Ct. U.S. Plaintiff, BRASSARD, J. Maurice 680. Appellant, language adopted quoted v. Lloyd applied United this Court v. Among RAILROAD, States, Cir., other & 5 226 9. MAINE F.2d BOSTON Defendant, Appellee. the rule are decisions illustrative 210, States, No. Humes v. United 170 U.S. 1011; Crumpton 602, 18 42 L.Ed. v. S.Ct. Appeal s United States Court of 355, 361, States, 11

United 138 U.S. S.Ct. First Circuit. States, 958; 34 United L.Ed. Ward v. 16, Jan. 441; 1952, Cir., 5 Pullin 195 F.2d v. 57; Cir., States, 1939, 104 F.2d United 5 Cir., 1938, States, 100 v. Beland United F.2d denied 306 certiorari U.S. 83 L.Ed. Riddle v. S.Ct. Cir., F. 216. United Applying submit this test to the record ted to us we find there was substantial guilty support verdict of

evidence to to both Count of the indictment as

appellants. judgment ver- sentence guilty charges of

dict of Counts

and 3 of indictment are reversed re-sen- the cause remanded

tencing by appellants the Court guilt upon the verdicts of returned In on these counts. all other judgment

respects the are sentence and re-sentencing For of the affirmed. 2 and on the Count Count with the views

convictions accordance expressed

herein the cause

Reversed and remanded. Judge (concur-

CAMERON, Circuit dissenting

ring part). part opinion ma- I the able concur

jority except it orders remand re-sentence under Counts 2

case for perfectly indictment. It seems me the trial Court was

clear to opinion the death regard giving proper, without jury’s to, portion of effect relating penalties on

verdict think, therefore, I counts. from, judgment appealed entered after carefully trial in which conducted

a most scrupulous- rights of the accused were all

ly safeguarded, all affirmed in should be parts.

of its

Case Details

Case Name: George Krull and Michael Krull v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 25, 1957

Citation: 240 F.2d 122

Docket Number: 15997

Court Abbreviation: 5th Cir.