Henry Herman Upham v. United States , 328 F.2d 661 ( 1964 )

328 F.2d 661

Henry Herman UPHAM, Appellant,
v.
UNITED STATES of America, Appellee.

No. 20359.

United States Court of Appeals Fifth Circuit.

Feb. 27, 1964.

John S. Cox, Jacksonville, Fla., for appellant.

Samuel S. Jacobson, Asst. U.S. Atty., Jacksonville, Fla., William A. Meadows, Jr., U.S. Atty., S.D. Fla., for appellee.

Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.

PER CURIAM.

1

During the trial of this Mann Act case the victim testified differently than she had previously indicated she would and contrary to a written statement signed by her. After an initial effort to get her to recant her testimony unfavorable to the prosecution, the United States Attorney let her depart from the witness stand. Thereafter, when the FBI agent who took her initial statement was on the stand, the Government had the victim's statement identified and tendered it in evidence. It was received without limitations on the purpose for which it could be considered and without objection. It was an extremely damaging statement. While appellant's counsel did not request an instruction that the statement be considered only as impeaching the witness, the need for such a charge to the jury was so obvious and the failure to give it so prejudicial to the appellant that this Court must notice the failure as 'plain errors * * * affecting substantial rights' of the accused under Rule 52(b) F.R.Crim.Proc.

2

The judgment of conviction must be set aside and the case remanded for further proceedings in the trial court.