United States of America, Appellee, v. Douglas M. Boney, Appellant, 384 F.2d 634 (4th Cir. 1967)

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US Court of Appeals for the Fourth Circuit - 384 F.2d 634 (4th Cir. 1967) Argued October 5, 1967
Decided October 30, 1967

John H. Duvall, Alexandria, Va. (Court-appointed counsel) (Bendheim, Fagelson, Bragg & Grenadier, Alexandria, Va., on brief) for appellant.

Stefan C. Long, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.


Convicted of escape from Lorton Reformatory, the defendant by court-assigned counsel imaginatively presents the only conceivable question on appeal. He contends that the record of the trial insufficiently identifies the defendant as the escapist because the transcript does not clearly establish that the witnesses, who identified the escapist by pointing to him as one seated at one of the counsel tables, were in fact pointing to this defendant and not to someone else seated at one of the counsel tables. Clearly, however, there was no lack of conviction or uncertainty about it at the time, and the participants in the trial at the time knew to whom the witness pointed. If the typewritten record cannot duplicate the gestures of the witnesses which made their testimony quite certain, it does not create an insufficiency in the evidence affecting the conviction.

Counsel frankly concedes that he had no defense at the time of the trial and would have none if a retrial were ordered.