496 F2d 861 United States v. Welch

496 F.2d 861

UNITED STATES of America, Appellee,
Herman Olin WELCH, Appellant.

No. 73-2041.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 4, 1974.
Decided April 23, 1974.

Thomas E. Smith, Jr., Pamplico, S.C. (Court-appointed counsel), and E. LeRoy Nettles, Lake City, S.C (Nettles, Thomy, Floyd, & Smith, Lake City, S.C., on brief) for appellant.

Marvin L. Smith, Asst. U.S. Atty. (John K. Grisso, U.S. Atty., on brief) for appellee.

Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit judges.


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Appellant Herman Olin Welch protests that he was prejudiced because of an experiment the jury initiated and conducted during its deliberations and so his bank robbery conviction, 18 U.S.C. 2113, should be vacated. One member produced a roll of adhesive tape, like that allegedly used by the defendant as a partial disguise in the holdup, while another juror simulated its use.


On defendant's motion for a new trial the District Judge, sensitive of the attaintment of a verdict by the injection into the jury room of proof dehors the record, declared the rehearsal to be misconduct and an error in trial. United States v. Beach, 296 F.2d 153, 158 (4 Cir. 1961); Cf. United States v. Hephner, 410 F.2d 930, 936 (7 Cir. 1969). Further, however, he appraised it as harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).


In his assessment, the Judge cautiously assayed the evidence, both in its detail and in its entirety, and found Welch overwhelmed in guilt. These conclusions were accurate applications of authentic measures. Chapman v. California, supra, p. 22, 87 S.Ct. 824.


Upon consideration of the record and argument of counsel, orally and on brief, we find appellant's assignments of error meritless, and affirm his conviction on the opinion of the District Judge. United States v. Welch, 377 F.Supp. 367 (1973).