Clyde B. Terry v. United States

Fifth Circuit

Clyde B. Terry v. United States

310 F.2d 715, 1962 U.S. App. LEXIS 3479

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 28, 1962

Docket19486

StatusPublished

Cited by6 cases

This text of 310 F.2d 715 (Clyde B. Terry v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clyde B. Terry v. United States, 310 F.2d 715, 1962 U.S. App. LEXIS 3479 (5th Cir. 1962).

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Opinion

PER CURIAM.

Clyde B. Terry was indicted for the unlawful transfer of marihuana. 26 U.S.C.A. § 4742; 68A Stat. 560. Count one charged that on January 7,1960, without a written order, he unlawfully transferred 20 grams of marihuana to Norris Farmer and Jewell Collins. Count two charged that on February 10, 1960, without a written order, he transferred 25 grams of marihuana to the same persons. Terry was convicted on only the first count.

The appellant contends, first, that he was prejudiced by the joinder of charges. There is no merit to the contention. Two or more offenses may be charged in the same indictment, if they are of the same or similar character. Rule 8(a), F.R.Crim.P. Courts have often upheld a joinder of similar offenses. Kivette v. United States, 5 Cir., 1956, 230 F.2d 749, cert. den’d 355 U.S. 935, 78 S.Ct. 419, 2 L.Ed.2d 418; Hoover v. United States, 10 Cir., 1959, 268 F.2d 787; Peckham v. United States, 1953, 93 U.S. App.D.C. 136, 210 F.2d 693. Here the offenses were identical.

We note too that the defendant did not move for a severance of counts. In a similar situation in a recent case, Fum-mill v. United States, 8 Cir., 1961, 297 F.2d 34, the court held:

“The two offenses with which appellant was charged were of the same character and were, therefore, properly subject, under Rule 8(a) of the Rules of Criminal Procedure, 18 U.S. C.A., to joinder in the same indictment. Neither the trial nor the sentence which appellant seeks to have set aside would be illegal. If there was any sound basis for asking to have the charges tried separately, this should have been done by a motion made at the time under Rule 14 *716 of the Rules of Criminal Procedure, 18 U.S.C.A. Appellant’s contention of prejudice from joinder cannot be used for a basis for collateral attack.”

The defendant’s second contention is that the evidence is insufficient to support conviction. After a careful study of the record, having in mind the standards for appellate review, the Court finds that the evidence supports the verdict and judgment.

The judgment is

Affirmed.

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PER CURIAM.

Clyde B. Terry was indicted for the unlawful transfer of marihuana. 26 U.S.C.A. § 4742; 68A Stat. 560. Count one charged that on January 7,1960, without a written order, he unlawfully transferred 20 grams of marihuana to Norris Farmer and Jewell Collins. Count two charged that on February 10, 1960, without a written order, he transferred 25 grams of marihuana to the same persons. Terry was convicted on only the first count.

The appellant contends, first, that he was prejudiced by the joinder of charges. There is no merit to the contention. Two or more offenses may be charged in the same indictment, if they are of the same or similar character. Rule 8(a), F.R.Crim.P. Courts have often upheld a joinder of similar offenses. Kivette v. United States, 5 Cir., 1956, 230 F.2d 749, cert. den’d 355 U.S. 935, 78 S.Ct. 419, 2 L.Ed.2d 418; Hoover v. United States, 10 Cir., 1959, 268 F.2d 787; Peckham v. United States, 1953, 93 U.S. App.D.C. 136, 210 F.2d 693. Here the offenses were identical.

We note too that the defendant did not move for a severance of counts. In a similar situation in a recent case, Fum-mill v. United States, 8 Cir., 1961, 297 F.2d 34, the court held:

“The two offenses with which appellant was charged were of the same character and were, therefore, properly subject, under Rule 8(a) of the Rules of Criminal Procedure, 18 U.S. C.A., to joinder in the same indictment. Neither the trial nor the sentence which appellant seeks to have set aside would be illegal. If there was any sound basis for asking to have the charges tried separately, this should have been done by a motion made at the time under Rule 14 *716 of the Rules of Criminal Procedure, 18 U.S.C.A. Appellant’s contention of prejudice from joinder cannot be used for a basis for collateral attack.”

The defendant’s second contention is that the evidence is insufficient to support conviction. After a careful study of the record, having in mind the standards for appellate review, the Court finds that the evidence supports the verdict and judgment.

The judgment is

Affirmed.

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310 F.2d 715, 1962 U.S. App. LEXIS 3479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clyde-b-terry-v-united-states-ca5-1962.

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