351 F2d 611 Tyree v. United States

351 F.2d 611

James Durham TYREE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22200.

United States Court of Appeals Fifth Circuit.

Oct. 11, 1965.

Harry G. Kincaid, Jacksonville, Fla. (court-appointed counsel), for appellant.

Aaron A. Foosaner, Asst. U.S. Atty., Miami, Fla., William A. Meadows, Jr., U.S. Atty., for appellee.

Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and CARSWELL, District Judge.

PER CURIAM.

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1

This is an appeal from a conviction of the appellant of the offense of bank robbery in violation of Title 18 U.S.C.A. 2113(a) and 2113(b).

2

Appellant asserts only two grounds for his appeal. The first, that the evidence was insufficient to warrant submission to the jury of the issue of appellant's guilt of the offenses charged, cannot be supported on the record before us. There was a positive identification by one of the employees of the bank which is adequate to warrant the jury's finding beyond a reasonable doubt the guilt of appellant.

3

The second ground of appeal, that appellant was denied constitutional rights by reason of being required to appear in a police lineup and to take certain affirmative action while in the lineup to permit the prospective witness to test her memory concerning the identity of the appellant, is not available on this record. This point was not made at any stage of the proceedings in the trial court. No facts have been developed, therefore, which would permit this Court to determine whether the principle announced by the Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is applicable.

4

The judgment is affirmed, without prejudice to the right of the appellant to present his contentions touching upon his being required to appear in the police lineup by such means as may be available to him.

5

The Court expresses its appreciation to counsel for his services as a volunteer.