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United States v. Anderson

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: April 14, 1969.

UNITED STATES OF AMERICA
v.
IRVIN LEROY ANDERSON A/K/A ERVIN ANDERSON, APPELLANT

Van Dusen, Aldisert and Stahl, Circuit Judges.

Author: Per Curiam

Defendant has appealed from a Judgment and Commitment of August 3, 1967, sentencing him to three years concurrently, pursuant to findings that defendant was guilty of each of the three counts of the Information*fn1 after a trial to the court.

After careful consideration of the record, we have concluded that there was ample evidence to support the guilty findings of the able trial judge.*fn2 There is no indication whether (1) that the trial judge did not properly evaluate the testimony of Walter Herman, who had committed a felony, after scrutinizing it with care in accordance with the standard specified in United States v. Barrasso, 267 F.2d 908, 910 (3rd Cir. 1959), and (2) that he did not properly consider the testimony of the juvenile accomplice, J. H. Herman,*fn3 after close, careful and rigid scrutiny as required by United States v. Schanerman, 150 F.2d 941, 943 (3rd Cir. 1945). The testimony of the 16-year old boy accomplice that defendant had been drinking wine but was not drunk, stuttering or staggering (N.T. 34-36) did not require the fact finder to conclude that a reasonable doubt had been raised in his mind on the existence of the requisite intent when the defendant performed the acts charged in the information.*fn4 See Ellis v. United States, 206 U.S. 246, 257, 27 S. Ct. 600, 51 L. Ed. 1047 (1907); Cramer v. United States, 325 U.S. 1, 31, 65 S. Ct. 918, 89 L. Ed. 1441 (1945); Doub v. United States, 341 F.2d 572 (9th Cir.), cert. den. 382 U.S. 851, 86 S. Ct. 98, 15 L. Ed. 2d 89 (1965).

The concurrent sentences imposed were substantially less than those authorized by Congress in 18 U.S.C. §§ 1702 and 1708, as amended July 1, 1952, and it is noted that the District Court sentence provided that defendant may become eligible for parole at such time as the Board of Parole may determine under 18 U.S.C. § 4208(a) (2).

The above-mentioned Judgment and Commitment will be affirmed.


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