Opinion
No. 9039.
Argued October 3, 1963.
Decided October 4, 1963.
John Ritchie, Jr., Richmond, Va., Court-assigned counsel (Hunton, Williams, Gay, Powell Gibson, Richmond, Va., on brief), for appellant.
Harry G. Camper, Jr., U.S. Atty., for appellee.
Before BOREMAN and BELL, Circuit Judges, and R. DORSEY WATKINS, District Judge.
Roy Harman was tried by a jury on a three-count indictment charging violation of U.S.C. Title 26, sections 5601(a)(4), 5601(a)(7) and 5604(a)(1), and was found guilty on all counts. The court imposed concurrent sentences of four years on each count. Although no exceptions were taken to the charge to the jury, and no motion for a new trial was made, Harman contends that there were plain errors in the charge, affecting substantial rights, of which this court will take notice. Rule 52(b), F.R.Cr.P.
Errors in the charge were in part expressly, and in part tacitly, admitted by the United States. These consisted in failing to instruct the jury as to the law applicable to the respective counts, and in instructing the jury as to an inapplicable presumption. On the whole record substantial rights of the defendant were affected (United States v. Levy, 3 Cir., 1946, 153 F.2d 995; Morris v. United States, 9 Cir., 1946, 156 F.2d 525; United States v. Max, 3 Cir., 1946, 156 F.2d 13; United States v. McKenzie, 6 Cir., 1962, 301 F.2d 880). The judgment is reversed and the case remanded to the District Court for a new trial.
Harman also moved in this court for admission to bail pending appeal. In view of the present disposition of the case, and the nature of the remand, any application for bail should be directed to the District Court.
Reversed and remanded.