Berry Anderson Dyson v. United States

Pursuant to § 2113(a), Title 18 U.S.C., appellant was indicted, tried and convicted by a jury, and was, by the United States District Court for the Southern District of California, Central Division, in which he was tried, sentenced to ten years imprisonment for a Los Angeles national bank robbery occurring on May 4, 1959. This appeal from that final decision and action by the District Court is within the jurisdiction of this Court. § 1291, Title 28 U.S.C.

Upon this appeal from that conviction and sentence, appellant here in effect assigns two notable errors: (1) that the Trial Court erred in instructing the jury that when as appellant did in this case a defendant in a criminal case voluntarily testifies to material facts concerning his guilt or innocence of the charge against him as a witness in his own behalf and fails to deny or explain incriminating facts already in evidence, such failure may be commented upon by the prosecution adversely to the defendant and may be considered by the jury, and (2) that the Trial Court erred in failing to exclude appellant’s oral confession.

Respecting the first assigned error, as to a defendant in a criminal case not being required to be a…

(dissenting).

I dissent, believing that the Diggs-Caminetti rule should not apply to those cases where as here the taking of the stand by the defendant was upon an issue unrelated to the issue of guilt. Grantello v. United States, 8 Cir., 1924, 3 F.2d 117, 121 .

The question of the voluntariness of a confession involves constitutional guaranties and, it would seem to me, should be recognized to be an issue wholly independent of the issue of guilt — one upon which the defendant should be free to testify, subjecting himself to cross-examination upon that issue and as to credibility but without subjecting himself to cross-examination or incriminating inferences upon the issue of guilt. The choice of federal law that factual issues upon the question of voluntariness be resolved by the trial jury rather than by some independent trier of fact (cf. Enoch v. Commonwealth, 1925, 141 Va. 411 , 126 S.E. 222 ; 3 Wigmore, Evidence (3d Ed., 1940) §§ 86CM361) should not be permitted to result in prejudicing the defendant in his right to testify freely upon this matter.

I cannot agree with the majority that the quoted testimony of the defendant amounts to a present assertion of innocence. If…

283 F.2d 636 Berry Anderson DYSON, Appellant, v. UNITED STATES of America, Appellee. No. 16697. United States Court of Appeals Ninth Circuit. Sept. 26, 1960, Rehearing Denied Dec. 2, 1960. 1 Berry A. Dyson, in pro. per. 2 Laughlin E. Waters, U.S. Atty., Robert J. Jensen, Bruce A. Bevan, Jr., Asst. U.S. Attys., Los Angeles, Cal., for appellee. 3 Before BARNES and MERRILL, Circuit Judges, and BOWEN, District Judge. 4 BOWEN, District Judge. 5 Pursuant to 2113(a), Title 18 U.S.C., appellant was indicted, tried and convicted by a jury, and was, by the United States District Court for the Southern District of California, Central Division, in which he was tried, sentenced to ten years imprisonment for a Los Angeles national bank robbery occurring on May 4, 1959. This appeal from that final decision and action by the District Court is within the jurisdiction of this Court. 1291, Title 28 U.S.C. 6 Upon this appeal from that conviction and sentence, appellant here in effect assigns two notable errors: (1) that the Trial Court erred in instructing the jury that when as appellant did in this case a defendant in a criminal case voluntarily testifies to material facts concerning his guilt or…