Donald Joseph Hall v. United States

CHOATE, Senior District Judge

(dissenting):

It is certainly true that the prosecutor’s remarks to the jury should be restricted to the evidence and its reasonable implications. But it is also true that a presumptively valid jury verdict should not be disturbed on appeal unless it is shown that there was reversible error in the court below. I do not believe that such error was demonstrated in this particular case.

The prosecutor's characterization of appellant as a “hoodlum” was not objected to at trial. This short-hand statement was not unsupported by the evidence and, while perhaps improper, was not fundamental error requiring reversal. The matters discussed at length in part 2 of the majority opinion were not assigned as error on appeal and were not briefed or argued. It is not the function *589of an appellate court to search for errors that were not presented to the trial court and that were not assigned as error on appeal. See Fogarty v. United States, 263 F.2d 201 (5 Cir. 1959). Finally, the trial court was reasonably understood to have sustained the objections to the remarks discussed in parts 1 and 3 of the majority opinion. At no time did trial counsel feel obligated to move for a mistrial and the trial court was never called upon to rule on such a motion.

We are not here dealing with a case where the evidence of guilt is slight and the government’s burden of persuasion is subject to attack. Few trials are free from error. The guilt of the defendant was manifest and we should hesitate to disturb the conviction unless reversible error is demonstrated. While it is certainly the intent of the law to protect the fundamental rights of the accused, we must remember that it is also the overriding intent of the law that the guilty be promptly prosecuted without undue restraint. Our system of criminal justice is suffering severely from the now common delays in reaching a final result in criminal proceedings. This case, as it comes before this court, should be affirmed.