Leonard R. Obery, Appellant, v. United States of America, Appellee, 217 F.2d 860 (D.C. Cir. 1954)

Leonard R. Obery, appellant herein, was convicted of robbery, after trial in the District Court. D.C.Code § 22-2901 (1951).¹ 

On appeal his first claim is that his conviction was improper because the trial court did not give to the jury a cautionary instruction that "they must find the circumstances of the identification [of the accused as the criminal] were convincing, otherwise they must acquit * * *." No such instruction, however, was requested at the trial by appellant's then counsel. Normally, failure to give an instruction not requested does not constitute reversible error. Fed. Rules Crim.Proc. rule 30, 18 U.S.C.A.; see Villaroman v. United States, 1950, 87 U.S.App.D.C. 240, 184 F.2d 261, 21 A.L.R.2d 1074. Appellant argues that nevertheless, under the rule in Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 388-389, 190 F.2d 612, 614-615, he is entitled to "instructions which relate to his theory of the case and which will protect his substantial rights."

Tatum, of course, was based on the established rule that the trial court must instruct on "`all essential questions of law involved in the case * * *.'" 88 U.S.App.D.C. at page 389, 190 F.2d at page 615. There is no essential question of law here as to which the court failed to instruct the jury. And if we assume arguendo that the rule in Tatum extends to any crucial issue either of law or of fact of a sort with which the jury cannot properly deal without a particularized instruction from the court,²  no such issue is here presented. The court's instructions, though general, adequately guided the jury in its task of weighing the evidence.³ 

We note, too, that the testimony identifying appellant as the criminal was credible and strong. At the trial, the complaining witness identified the appellant by recognizing him as the man who had robbed her at an earlier time.⁴  The witness Harold Jones testified that he had seen appellant immediately after the crime in an alley behind the establishment of the complaining witness, in the same clothes described by the complaining witness as those worn by appellant, and had recognized appellant as a man observed by him in his own neighborhood and known by the nickname of "Moose." Appellant admitted to being known by that nickname. Furthermore, it appeared without denial that the appellant told the police, shortly after his arrest, that he had committed the crime. Thus the jury could readily conclude that appellant's identification was established beyond a reasonable doubt.

Appellant's second contention is that the court should have given an instruction that the oral confession made by the appellant to the police should be regarded with caution. Here, again, no such instruction was requested at the trial. A similar question was recently answered by this court, on facts not materially different from those at bar. Jackson v. United States, 1952, 91 U.S.App. D.C. 60, 198 F.2d 497, certiorari denied, 344 U.S. 858, 73 S. Ct. 96, 97 L. Ed. 666. We there said: "While the cautionary instruction should have been given, * * the omission, in the circumstances of this case, was not such plain error `affecting substantial rights' as leads us to reverse." The same is true here.

Appellant also complains of certain of the statements made by the prosecuting attorney in his summation to the jury. His attorney made objection to them, and moved for a mistrial. The motion was denied, but thereafter the prosecution's tone was moderated. Later, the court gave a cautionary instruction to the jury. Our reading of the record does not lead us to conclude that "misconduct was pronounced and persistent," Berger v. United States, 1935, 295 U.S. 78, 89, 55 S. Ct. 629, 633, 79 L. Ed. 1314, so as to result in reversible error.⁵ 

For these reasons, the judgment of the District Court will be

Affirmed.