301 F2d 298 United States v. Young

301 F.2d 298

UNITED STATES of America, Plaintiff-Appellee,
v.
Leslie Bill YOUNG, Defendant-Appellant.

No. 14764.

United States Court of Appeals Sixth Circuit.

April 6, 1962.

H. H. Gearinger, Chattanooga, Tenn. (Gearinger, Banks & Hutcheson, Chattanooga, Tenn., on the brief), for defendant-appellant.

David Smith, Asst. U. S. Atty., Chattanooga, Tenn. (John H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief), for plaintiff-appellee.

Before MILLER, Chief Judge, and CECIL and WEICK, Circuit Judges.

PER CURIAM.

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1

The appellant, Leslie Bill Young, following trial by jury, was found guilty of violating the Internal Revenue Laws on a four-count indictment involving possession and custody of an illicit still. The single issue presented on the appeal is whether the conduct of the jury was so capricious as to deny the defendant due process of law. It is claimed in support of this issue that the jury was retired at 3:40 p. m. and returned to the jury box in a little short of four minutes, without sober deliberation and without going into the hallway beyond the jury box.

2

An affidavit of the defendant-appellant and his two co-defendants was filed in this Court with the appellant's brief, in an effort to establish the claim by evidence. This affidavit was not filed in the District Court and the question was not raised before the trial judge. We hold that the record cannot be enlarged in this manner and that the substance of the affidavit is not before us.

3

The official record of the trial discloses the following facts: that the trial judge instructed the jury to retire, select a foreman, consider its verdict and report back to the court upon arriving at a verdict; that the jury retired at 3:40 p. m. and at 3:44-p. m. announced that it was ready to report and returned to the court room; that counsel for the government and counsel for the defendant waived the poll of the jury; that the trial judge asked the jury if a verdict had been reached and the foreman replied "Yes, sir," and announced the verdict as guilty on all counts; that the judge then asked: "Is that the verdict now of each member of the jury?" and the court reporter reported that each juror nodded affirmatively.

4

Jurors formulate their opinions from the evidence they hear in the court room. The record of the trial indicates that the issues were simple and the evidence of guilt strong. It is not surprising that the jurors could quickly arrive at a verdict.

5

We find no irregularity in the procedure or any inconsistency with Rule 31, F.R.Cr.P. 18 U.S.C.A. on verdicts, and nothing in the record to demonstrate the error claimed by appellant.

6

The judgment of the District Court is affirmed.