Forakis v. United States

137 F.2d 581, 1943 U.S. App. LEXIS 2854

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 20, 1943
• Docket: No. 2655
• Status: Published

Opinions

BRATTON, Circuit Judge.

This appeal is from a conviction of murder in the second degree for the killing of an Indian on an Indian Reservation in Utah.

The jurisdiction of the court is not questioned, the indictment is not attacked, the sufficiency of the evidence as a whole is not challenged, and no complaint is made in respect of the admission or exclusion of any particular testimony. Certain requested instructions were tendered but no point is made of the failure to give them. They are not even mentioned in the brief of appellant. The contentions advanced for reversal of the judgment and sentence relate solely and exclusively to the instructions given by the court. But no exceptions were taken to the instructions. Instead, at the conclusion of the giving of the instructions appellant submitted one suggestion, the court immediately gave an additional instruction covering the matter, and appellant then stated in response to an inquiry of the court that he had nothing further to suggest. Therefore, the questions now presented were not preserved and are not open to review. Lindsay v. Burgess, 156 U.S. 208, 15 S.Ct. 355, 39 L.Ed. 399; Order of United Commercial Travelers v. Greer, 10 Cir., 43 F.2d 499; Kitrell v. United States, 10 Cir., 79 F.2d 259; Scritchfield v. Kennedy, 10 Cir., 103 F.2d 467.

Errors occurring during the trial of a criminal case must be appropriately called to the attention of the trial court by objection, exception, or otherwise, thus affording an opportunity for correction; and ordinarily where that is not done they are not reviewable on appeal. Bogileno v. United States, 10 Cir., 38 F.2d 584; Addis v. United States, 10 Cir., 62 F.2d 329; Williams v. United States, 10 Cir., 66 F.2d 868; Trefone v. United States, 10 Cir., 67 F.2d 954; Strader v. United States, 10 Cir., 72 F.2d 589; Kelly v. United States, 10 Cir., 76 F.2d 847; Edgmon v. United States, 10 Cir., 87 F.2d 13; Crabb v. United States, 10 Cir., 99 F.2d 325; Hayes v. United States, 10 Cir., 112 F.2d 676; Miller v. United States, 10 Cir., 120 F.2d 968; Rose v. United States, 10 Cir., 128 F.2d 622.

That general rule bears the well recognized exception that where life or liberty is involved, an appellate court may notice and correct serious errors which were fatal to the rights of the accused even though they were not challenged or reserved. Bogileno v. United States, supra; Addis v. United States, supra; Williams v. United States, supra; Strader v. United States, supra; Kelly v. United States, supra; Edgmon v. United States, supra; Crabb v. United States, supra; Hayes v. United States, supra; Miller v. United States, supra; Rose v. United States, supra. But no error of that kind is presented here.

The judgment is affirmed.