Robert Francis Dean v. Carl Hocker, Warden

This is an appeal from an order of the district court denying a petition for a writ of habeas corpus.

Petitioner was convicted of robbery after trial by jury. His defense was the presumption of innocence. There was strong evidence of guilt which the jury believed, as did the state trial judge and the justices of the Supreme Court of Nevada, who heard the matter twice. 1 The United States District Judge, from whose order this appeal is taken, not only believed the evidence but felt that it was so convincing that “the jury could have acquitted only by rejecting substantially all of the prosecution’s testimony.” From what appears in the record here there is little doubt the defendant was guilty, and that it would have been a mistake in judgment had the jury failed to convict. We reverse.

The state of Nevada did not accord to the defendant the last full measure of his Fourteenth Amendment rights.

A gun and a jacket were, over proper objection, introduced into evidence. They had been illegally seized, and by virtue of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) were inadmissible in the state prosecution. The state of Nevada now urges that the error was…

(concurring) :

I concur. I conclude that the repeated reference and reliance by the prosecution on the physical evidence in argument to the jury makes it difficult to now rule that there was, beyond a reasonable doubt, harmless error in the introduction of the gun and jacket.

409 F.2d 319 Robert Francis DEAN, Appellant, v. Carl HOCKER, Warden, Appellee. No. 22674. United States Court of Appeals Ninth Circuit. March 27, 1969. Leslie M. Fry (argued), and Mack Fry, Reno, Nev., for appellant. C. B. Tapscott (argued), Deputy Atty. Gen., Harvey Dickerson, Atty. Gen., Carson City, Nev., for appellee. Before BARNES and HAMLEY, Circuit Judge, and SMITH, * District judge. RUSSELL E. SMITH, District Judge: This is an appeal from an order of the district court denying a petition for a writ of habeas corpus. Petitioner was convicted of robbery after trial by jury. His defense was the presumption of innocence. There was strong evidence of guilt which the jury believed, as did the state trial judge and the justices of the Supreme Court of Nevada, who heard the matter twice. 1 The United States District Judge, from whose order this appeal is taken, not only believed the evidence but felt that it was so convincing that 'the jury could have acquitted only by rejecting substantially all of the prosecution's testimony.' From what appears in the record here there is little doubt the defendant was guilty, and that it would have been a mistake in judgment had the jury failed…