Frederic Pittman, Appellant, v. United States of America, Appellee, 368 F.2d 560 (9th Cir. 1966)

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U.S. Court of Appeals for the Ninth Circuit - 368 F.2d 560 (9th Cir. 1966) October 31, 1966
Rehearing Denied December 13, 1966

William Gaffney, Robert S. Egger, Seattle, Wash., for appellant.

Eugene G. Cushing, U. S. Atty., Stanley H. Barer, Asst. U. S. Atty., for appellee.

Before HAMLIN, KOELSCH and ELY, Circuit Judges.


On this appeal the defendant's assignments of error are devoted exclusively to instructions given by the Court.

Appellant urges that eleven of the twelve challenged instructions are incorrect. But at most they contain some surplusage and, in a few instances, inapt words. Imprecision of statement and inexactness of language in instructions is not reversible error, unless the jury is misled. Here no such conclusion is indicated.

We agree with appellant that the remaining instruction, concerning the matter of punishment, was overbroad. The crimes were such that the jury was in no way concerned with the penalty that attached [Andres v. United States, 333 U.S. 740, 68 S. Ct. 880, 92 L. Ed. 1055 (1948)] and the part of the Court's instruction to that effect was proper; the further statement concerning the Court's broad powers over the defendant in the event of his guilt was not. See Pope v. United States, 298 F.2d 507 (5th Cir. 1962).

The court, in an instruction which immediately followed the erroneous comment, remarked that the matter was one exclusively for the court to decide and admonished the jury to disregard "possible punishment" in arriving at its decision. The appellant does not contend that the evidence was insufficient to support conviction, and we conclude, under the circumstances, that the erroneous instruction was neutralized.

The judgment is affirmed.