Benjamin F. Stith, Jr. v. United States

374 F.2d 309

Opinions

PER CURIAM.

Appellant, indicted for murder in the first degree, was convicted of second degree murder under a submission by the trial court of that issue to the jury over a protest by the defense that it wanted no instruction other than first degree.¹ A confession made by appellant immediately after his arrest was admitted into evidence after a hearing outside the presence of the jury prompted by the objection that the confession was involuntary because (1) of appellant’s mental condition and (2) it had been obtained in violation of appelfont’s right to counsel.² No issue is raised here as to the adverse resolution of the first such ground. What is urged upon us now is that, had this trial occurred after Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the confession would have been excludable by reason of the second ground, namely, the failure to advise appellant of his right to counsel; and that we should give Miranda, retrospective operation notwithstanding Johnson and Cassidy v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). This we have declined to do before now;³ and we see no reason to do so here. There was evidence that appellant had been warned of his right to remain silent; and it is undisputed that he made no request for counsel. Under these circumstances there was no violation of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as the scope of that holding has been expressly defined by the Supreme Court in Johnson and Cassidy.

Affirmed.

1 . It is now argued that the trial judge committed reversible error in not instructing upon manslaughter as well. Assuming for the moment that the point is available upon appeal, we have searched the record for evidence founding a manslaughter charge. We are not persuaded that, even if such a charge had been requested, the court would have erred in withholding it. A second point raised for the first time here is that a confession admitted in evidence was the fruit of an arrest made without probable cause. This contention is patently at odds with the facts of record; and again we need not rest upon the limiting principles customarily applicable to the scope of appellate review.

2 . Any objection founded upon Rule 5(a), Fed.R.Crim.P., was expressly disclaimed by the defense at the trial, and is not raised here.

3 . See Coleman v. United States, 125 U.S. App.D.C.-, 371 F.2d 343 (1966), cert. denied, 385 U.S. 1027, 87 S.Ct. 979, 17 L.Ed.2d 875 (Feb. 27, 1967); and see Duckett v. United States, No. 19,911, decided July 12, 1966, argued before Miranda and in which we received a supplemental memorandum requesting its application. In this latter case, we affirmed by order, citing Johnson and Gassidy.