Calos Ortiz Johnson v. United States

Appellant, an American Indian, was convicted (with a co-defendant who has not appealed) of breaking and entering at nighttime the White River Trading Post, located within the territorial confines of the Fort Apache Indian Reservation in Arizona. (18 U.S.C. § 1153.) 1 Under the law of Arizona, burglary is defined as ""entering a building * * * shop * * * with intent to commit grand or petty theft, or any felony * * *."" Ariz.Rev.Stat.Ann., § 13-302, subsec. A: ""Burglary committed in the nighttime is burglary of the first degree, * * *."" Ariz.Rev.Stat.Ann., § 13-302, subsec. B. Cf. § 13-301. The evidence here introduced proved that crime. We have jurisdiction on appeal. (28 U.S.C. § 1291.) Two errors are alleged. One relates to the statement of a government witness respecting a conversation with defendant on a certain date. In reply to a question by the judge as to why the defendant was in the witness' office on that particular day, the witness answered defendant was under arrest ""on another charge."" No objection or motion to strike was made by counsel for defendant. In view of (a) the overwhelming evidence of defendant's guilt, and (b) his admission of the fact of his entry into the premises, and (c) his admitted prior felony conviction, we find in this incident no ""plain error,"" but mere ""harmless error."" Rule 52, Fed.R.Crim.P. Neal v. United States, 342 F.2d 730 (9th Cir. 1965).