CONSTITUTIONAL LAW - CRIMINAL LAW AND PROCEDURE - PRESENCE OF ACCUSED DURING ARGUMENTS OF LAW

The defendant was indicted for a felony on charges of wilfully attempting to "evade or defeat'' federal income taxes based on his failure to report money allegedly received by him from "backers" of numbers games in exchange for political protection. On cross-examination he was questioned about certain payments made in the year following the ones on which the indictment was based. His attorney objected on the ground that the question was going to be the subject of another indictment against the defendant, and asked that the jury be dismissed while an argument was had upon the point of law raised. The trial judge excused the jury, but at the same time he granted the prosecuting attorney's request that the defendant be excused from the courtroom.

The defendant left the courtroom without argument or objection. In his appeal, however, he claimed that the court's action deprived him of due process of law guaranteed by the Fifth Amendment. In an opinion based on the principles established in. Snyder v. Massachusetts, the court held that the defendant "took no harm from his exclusion from the courtroom during the argument" and, consequently, was not deprived of his rights under the Fifth Amendment.

United States v. Johnson, (C. C. A. 3d, 1942) 129 F. (2d) 954, affd. Johnson v. United States, (U.S. 1943) 63 S. Ct. 549·