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374 F.2d 389

Docket No. 18573.

Gresham v. United States

Eighth Circuit Court of Appeals

Decided March 30, 1967.

Eighth Circuit Court of Appeals · decided 1967-03-30

Cited by 14 later decisions — most recently April 1975

13 federal appellate · 1 state decisions

2 counsel of record

Key passage — most relied on by later courts

““Rule 52(a), Fed.R.Crim.P., provides that any error which does not affect substantial rights shall be disregarded. The Courts have uniformly held that prejudicial error must be shown before a reversal is justified. (Citations omitted.) The strength of the Government’s case is an important factor in determining the existence of prejudicial error. (Citations omitted.)””

quoted by 1 later decision, including Moore v. United States

Applies 18 U.S.C. § 2312

Relies on Kotteakos v. United States · Consolidated Edison Co. of New York v. United States · Bulova Watch Co. v. United States

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1967-03-30

View the full empirical analysis of this case →

¶1Earl L. Davis, St. Louis, Mo., for appellant.

¶2Irvin Ruzicka, Asst. U. S. Atty., St. Louis, Mo., for appellee. Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief.

¶3Before MATTHES, BLACKMUN and MEHAFFY, Circuit Judges.

¶4PER CURIAM.

¶5Joseph Thomas Gresham, Jr., has appealed from a judgment of conviction entered pursuant to a jury verdict finding him guilty of violating 18 U.S.C. § 2312 (1948), commonly known as the “Dyer Act.” 1

¶6The sufficiency of the evidence to sustain the verdict is not challenged.2 From the uncontradicted evidence the jury could find that on June 27 or June 28, 1966 appellant transported a 1965 Ford Mustang from Blytheville, Arkansas to Charleston, Missouri. The automobile had been stolen in Blytheville on the evening of June 27th. The circumstances antedating appellant’s arrest and apprehension strongly indicate that he actually stole the automobile, and were sufficient to establish the element of scienter.

¶7Appellant’s sole claim of error is that he was effectively deprived of a fair trial by the admission into evidence, over objection, of the following testimony of the arresting officer:

“Q. Had you received a report that the defendant was armed?
“A. Yes, I did.
(Following a colloquy between Court and counsel, the examination continued :)
“Q. Officer, you arrested Joseph Thomas Gresham, did you not?
“A. Yes, I did.
“Q. At the time of the arrest you didn’t find a gun on him, did you?
“A. Not on the first search I did-n't.”

¶8*390Appellant’s basic premise seems to be that this was a “close case”, and that the mere reference to a gun depicted the appellant as an “armed man.” It is contended such characterization swung the balance in favor of the Government.

¶9We disagree. Having considered the questioned testimony in context, we are not persuaded that its admission constituted error. But even if we were to indulge in that assumption, we are convinced the error was harmless. Contrary to appellant’s assertion, this was not a weak case. The evidence of guilt was strong and convincing.

¶10Rule 52(a), Fed.R.Crim.P., provides that any error which does not affect substantial rights shall be disregarded. The Courts have uniformly held that prejudicial error must be shown before a reversal is justified. Kotteakos v. United States, 328 U.S. 750, 764-765 (1946); Tucker v. United States, 375 F.2d 363 (8th Cir. March, 1967); Osborne v. United States, 351 F.2d 111, 117 (8th Cir. 1965); Evenson v. United States, 316 F.2d 94, 95 (8th Cir. 1963). The strength of the Government’s case is an important factor in determining the existence of prejudicial error. Patterson v. United States, 361 F.2d 632, 636 (8th Cir. 1966); Jacobson v. United States, 356 F.2d 685, 689 (8th Cir. 1966); Brown v. United States, 283 F.2d 792, 797-798 (8th Cir. 1960); Thomas v. United States, 281 F.2d 132, 136 (8th Cir. 1960), cert, denied, 364 U.S. 904, 81 S.Ct. 239, 5 L.Ed.2d 196 (1960); Homan v. United States, 279 F.2d 767, 770-771 (8th Cir. 1960), cert, denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960).

¶11We have carefully examined the entire record and are satisfied that the impropriety complained of had no prejudicial effect upon the jury. Appellant received a fair trial, and the judgment should be and is affirmed.

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