Harry Edison HACKWORTH, Appellant, v. UNITED STATES of America, Appellee.
No. 23598.
United States Court of Appeals Fifth Circuit.
July 5, 1967.
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C. T. Leonard, Jr., Greensboro, N. C. (G. Neil Daniels, and McLendon, Brim, Brooks, Pierce & Daniels, Greensboro, N. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.
PER CURIAM.
Prior to his retirement, the appellant was vice president in charge of Coble Construction Company‘s Greensboro office. Shortly after leaving, and pursuant to the Welfare and Pension Plans Disclosure Act of 1958,1 he requested that the company furnish him with copies of the pension plan and related financial statements. The request was denied on policy grounds, but the company offered to allow inspection of the documents at the Greensboro office at any reasonable time. This was unsatisfactory to the appellant, and he brought suit to recover statutory penalties for failure to furnish the requested information.2 Subsequently, he unconditionally accepted a check in the amount due him under the pension plan, and after a later hearing, the complaint was dismissed. No penalties were awarded, because no injury was shown. The appellant now charges error in the failure to award penalties, but, in the particular factual situation presented, we find no abuse of discretion on the part of the District Judge.
There is substantial evidence in the record that the appellant, through discussions with other employees and examination of the plan and other documents, became thoroughly familiar with the terms and conditions of the plan before leaving the company‘s employ. Thus, he does not stand in the position of an uninformed person prevented from ascertaining his rights by the nondisclosure. He can claim no injury from lack of information. Further, the appellant claims no financial loss. He admits that the check which he accepted represented the full amount due him under the provisions of the plan, although he claims payment should have been made earlier.
The statute makes an allowance of the penalty discretionary. We find no abuse of discretion.
Affirmed.
Robert S. Travis, Asst. U. S. Atty., Melvin M. Diggs, U. S. Atty., Fort Worth, Tex., for appellee.
Before BELL and GODBOLD, Circuit Judges, and NOEL, District Judge.
PER CURIAM:
Appellant was convicted of knowingly possessing stolen mail in violation of
Upon careful consideration of appellant‘s four-pronged attack upon this conviction, it is clear that he cannot prevail.
Appellant‘s first asserted point of error that the trial court erred by submitting the presumption of sanity to the jury is without merit. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L. Ed. 499 (1895).
His second asserted point of error that, as a matter of law, the evidence was insufficient under Count I of the indictment to go to the jury is likewise without merit. Smith v. United States, 343 F.2d 539 (5th Cir. 1965); Stevens v. United States, 306 F.2d 834 (5th Cir. 1962). Cf. Barenblatt v. United States, 360 U.S. 109 at page 115, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).
The trial court did not err by failing to instruct the jury on its own motion that certain evidence was to be considered for limited purposes only. Richards v. United States, 329 F.2d 188 (5th Cir. 1964), cert. denied 379 U.S. 854, 85 S.Ct. 102, 13 L.Ed. 2d 57. As in Richards, neither was such instruction requested nor was there objection because it was not given.
The trial judge correctly instructed the jury on the test of criminal responsibility adhered to by the Fifth Circuit. Howard v. United States, 232 F.2d 274 (5th Cir. 1956); Davis v. United States, 165 U.S. 373, 17 S.Ct. 360, 41 L. Ed. 750 (1897).
The judgment is affirmed.
GODBOLD, Circuit Judge (specially concurring):
I concur in the result. As to the first asserted point of error my views are different from those of my brothers.
The court gave a charge requested by the prosecution which referred, though briefly, to the presumption of sanity. In Howard v. United States, 232 F.2d 274 (5th Cir., 1956) we held that even after there has been produced sufficient evi-
However, in this case there was in evidence a commitment order entered in the State of Kentucky in 1936 committing the defendant to a state mental institution and showing his release shortly thereafter. The commitment order is remote in time, the defendant‘s commitment was brief, and there was considerable testimony of psychiatrists who have examined defendant in more recent years that he is sane. But these are matters of weight for the jury.
This is not an appropriate case to consider whether any evidence, however slight and whatever the form, of insanity is sufficient to cause the presumption of sanity to disappear,2 nor to inquire into whether the presumption should be mentioned to the jury at all,3 nor of the effect of the commitment order on the ultimate burden of proof.4 But I am of the view that a state commitment proceeding not shown to be vacated, and as to a person not shown to have been thereafter adjudicated competent and not shown to have been released from commitment as cured, and not shown to have been judicially determined to be restored to competency, is of sufficient evidentiary force to remove the presumption of sanity. That presumption is based on the common experience of mankind that the overwhelming majority of us, regardless of our differences, quirks and peculiarities, are of sufficient mental responsibility that we meet tests of criminal responsibility. The presumption has no application to a defendant who, it is shown on the basis of official state action, may well be outside the ambit of the hypothesis from which the presumption arises. This presumption is simply a convenient aid to rational determination, not to be deified into something else by formalistic application to a situation totally foreign to its purpose.
Because the reference to presumption in the charge was very brief, and no objection was made and no explanatory charge sought, and the other and more recent evidence of sanity strong, the case should not be reversed on this point.