Kittrell v. United States

Full title: Oshel Eugene KITTRELL, Appellant, v. UNITED STATES of America, Appellee

Court: United States Court of Appeals, Fifth Circuit

Date published: Jul 16, 1964

334 F.2d 242 (5th Cir. 1964)

Opinion

No. 19890.

July 16, 1964.

Appeal from United States District Court for the Western District of Texas, R.E. Thomason, Judge.

Jack T. Niland, El Paso, Tex., for appellant.

M.H. Raney, Asst. U.S. Atty., El Paso, Tex., for appellee.

Before BROWN and WISDOM, Circuit Judges.^_

_ Judge Cameron had concurred in this disposition, but the opinion was not filed until after his death.

PER CURIAM.

On the submission of this case, our study showed that the principal question was the correctness of the charge to the jury on the issue of insanity. As that matter was then under consideration by the Court en banc in Carter v. United States, 5 Cir., 1963, 314 F.2d 386, further action was expressly deferred pending decision of that case. On December 12, 1963, Appellant filed a motion to dismiss his appeal. Pursuant to that request, we ordered the appeal dismissed on December 24, 1963. Then on December 30, 1963, Appellant filed a motion to reinstate his appeal which we have granted. On the merits we affirm.

The charge under attack conforms to the requirements of Howard v. United States, 5 Cir., 1956, 229 F.2d 602, Rev'd on Rehearing, 5 Cir., 232 F.2d 274, and Davis v. United States, 1895, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, and the equal division of the Court in Carter v. United States does not call for any different result. There is obviously no merit to the point on speedy trial.

Affirmed.