444 F2d 109 United States v. Newsome

444 F.2d 109

UNITED STATES of America, Plaintiff-Appellee,
v.
Frank NEWSOME, Defendant-Appellant.

No. 20977.

United States Court of Appeals, Sixth Circuit.

June 17, 1971.

Joel M. Shere, Detroit, Mich., court appointed, for defendant-appellant.

Richard L. Delonis, Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Richard L. Delonis, Asst. U. S. Atty., Detroit, Mich., on brief.

Before WEICK, PECK and MILLER, Circuit Judges.

PER CURIAM.

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1

Defendant-appellant was charged in the District Court with escape from federal custody and interstate transportation of a stolen vehicle. This appeal followed judgment of conviction entered on the jury verdict finding him guilty of both charges.

2

Appellant contends that a confession was erroneously received in evidence as a part of the government's case because the complete cautionary warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not given to him prior to his making of the confession. While the District Court found that a sufficient warning under Miranda had been given, we find it unnecessary to reach that point for reasons which hereinafter appear.

3

As was clearly enunciated in the opening statement of defense counsel, and as was further demonstrated by his closing argument to the jury, the sole defense presented at trial concerned the defendant's alleged mental incompetence. While it is true that objection was made to the receipt of the confession in evidence during the government's case, following the overruling of his motion for a judgment of acquittal made when the government rested, the defendant testified in his own behalf and in that testimony and in other evidence offered by him admitted the circumstances of both the escape from federal custody and the interstate transportation of the stolen motor vehicle. He did not renew the motion for a judgment of acquittal at the close of all of the evidence.

4

In these circumstances, it must be concluded that the defendant waived his objections to the denial of his motion for judgment of acquittal on the ground that the confession had been erroneously received in evidence. United States v. Gosser, 339 F.2d 102 (6th Cir. 1964), cert. denied, 382 U.S. 819, 86 S.Ct. 44, 15 L.Ed.2d 66; rehearing denied, 382 U.S. 922, 86 S.Ct. 285, 15 L.Ed.2d 237 (1965).

5

It is concluded that no error prejudicial to the rights of the accused occurred at trial, and the judgment of conviction will be affirmed.