This is an appeal from a conviction of appellant in the District Court on a charge of armed robbery of a taxicab driver in the amount of $10. Appellant was arrested on the morning after the robbery and was found to have in his possession a change carrier which the taxicab driver identified as the one taken from him by the robber. Appellant was positively identified as the perpetrator of the robbery, and a pistol was found in his possession which the taxicab driver testified looked exactly like the one which had been used in the robbery.
After his arrest, at the instance of the District Attorney and while confined in the District Jail, appellant was examined by two psychiatrists, and was at that time found to be suffering from prison psychosis. He was adjudicated insane on March 18, 1947, and was committed to St. Elizabeths Hospital on the following day. He was returned to the District Jail on July *15421, 1947, as of sound mind. His trial and conviction followed.
One of appellant’s contentions is that he was denied assistance of counsel for his defense, as required by the Sixth Amendment, by reason of the failure of his counsel 1 during the progress of the trial to take certain steps which it is now alleged would have been beneficial to appellant.
The record abundantly shows that appellant was represented at his trial by experienced counsel of his own selection. No allegation has been made of flagrant disregard of appellant’s rights. As a matter of fact, if all of the alleged “mistakes” of the defense counsel were admitted as such by the Government they would either be entirely harmless or amount to nothing more than the selection of trial tactics familiar to every trial lawyer and entirely within his purview in the trial of a case. No trial lawyer worthy of the name would be willing to appear in court with someone at his side jogging his elbow at every, decision he made incident to the trial of a case. The suggestion made by appellant that it is the duty of this court to undertake to substitute its judgment of the proper tactics in the trial of a case for that of the lawyer in the forum is baseless and unacceptable.2
Appellant further complains of this portion of the charge to the jury by the trial judge: “There are only two types of verdict you can return, one is a verdict of guilty as charged and the other is a verdict of not guilty by reason of insanity.”
There is and can be no dispute that the case was defended on behalf of appellant upon the theory that he was of unsound mind. He nowhere denied his guilt but contented himself with the assertion that he did not remember committing the crime. In this connection we deem this portion of the closing statement to the jury by the defense counsel of special significance: “He has testified that he doesn’t remember the circumstances of the robbery. * * * Now, to hold that he was of sound mind in November of 1946, you would have to speculate, but you have here the theory of reasonable doubt, His Honor will charge you, and I say to you taking all of that into consideration that you can only arrive at one verdict, that he was not guilty by reason of insanity.” [Italics added.]
We believe that it would have been preferable for the trial court to have given the instructions in terms less broad and blunt. However, we believe that if there was error in the charge to the jury it was not sufficiently prejudicial as to warrant reversal. Any error in the instruction complained of was in our opinion cured by another portion of the charge: “He is presumed to be innocent until such time as you, the jury, if you should reach that conclusion, upon all the evidence, beyond a reasonable doubt, are satisfied as to his guilt, and if you can reconcile the evidence in the case with any reasonable hypothesis looking toward the defendant’s innocence, you are obliged to do so, and you are so instructed.”
In addition, it is to be noted that appellant did not object to or except to this charge or any portion of it, and therefore should not be allowed to raise his objection thereto for the first time upon appeal,3 since we do not regard the charge as containing plain error affecting substantial rights.
We specify the absence of desire to overrule the holdings by this court in Williams v. United States, 1942, 76 U.S.App.D.C. 299, 131 F.2d 21, and McAffee v. United States, 1939, 70 App.D.C. 142, 105 F.2d *15521. In both of those cases (capital in nature) the plain issue was, as it usually is in criminal cases, the question of the guilt or innocence of the accused; in our view of this case the issue raised for determination by the jury was the question of the excusability of the accused — whether he was of unsound mind at the time this offense was committed. We are of the opinion the present case is clearly distinguishable from the Williams and McAffee cases on that ground.
Another contention made by appellant is of minor importance. He complains that testimony was admitted connecting him with another crime which had no relevancy in connection with the one for which he was being tried. Suffice it to say that this testimony was elicited by appellant’s own counsel on cross-examination. Counsel apparently asked a few too many questions. That is a fault most of us who have tried cases in court have occasionally committed, but for such wounds there is no balm to be applied by a court of appeals.
A careful examination of the record discloses no reason for disturbing the judgment of the District Court
Affirmed.
Appellant’s counsel on appeal did not represent appellant in the trial of this case.
See Burton v. United States, 1945, 80 U.S.App.D.C. 208, 151 F.2d 17, certiorari denied, 1946, 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479.
Norman v. United States, 1902, 20 App.D.C. 494. Federal Rules of Criminal Procedure, Rule 30, 18 U.S.C.A. following section 687: . . No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. . . .” See Watts v. United States, 5 Cir., 1947, 161 F.2d 511; United States v. Sutter, 7 Cir., 1947, 160 F.2d 754; Kempe v. United States, 8 Cir., 1947, 160 F.2d 406.