*2 SANBORN, Before WOODROUGH THOMAS, Judges. Circuit THOMAS, Judge. Circuit Charles Vincent indicted, Gicinto tried and convicted an indictment counts, in three and the court sentenced years prison him to serve ten on each count, the sentences on each count concurrently; served appeals. ®0 burglary charges of [Kansas] indictment Each count robbery holdup last at in a armed on or about Mrs. Missouri, appellant with October home of Mr. and City, at the
Kansas
*3
Peet, Eighty-third
pass,
Herbert
Street
utter
O.
did
intent
publish falsely
defraud
to
and Nall Avenue.”
counterfeited
made and
namely
States,
security of
United
morning
When court convened on the
18
twenty
note.
Reserve
dollar Federal
July
moved
3d counsel for defendant
472.
UiS.C.A. §
discharge
upon
jury
“for a
based
”
* * *
verdict
that the
is no claim
things.
There
two
the arti-
First
by
supported
jury
the evi-
is not
cle referred to in the Star.
Appellant’s
is that
contention
dence.
Referring
published
article
given
trial
in
a fair
was not
personally
counsel said: “I do not know
for
court erred
jurors]
they
ar-
read such
[the
be-
mistrial
declare a
I. Failure to
or
ticle
not
I desire to intro-
newspaper article.
* *
cause of a
duce a witness
ÍI,
pass-
aof
in evidence
Admission
Counsel for defendant read into
received
port
the defendant
issued to
part
out
of the article set
1952.
him on
Ness,
above, whereupon Richard Van
charge
court’s
.Errors
III.
who had been a
for
character witness
for—
defendant,
got
testified
as he
on the
jury
charge that
Building
.Failure to
1.
elevator
the Federal Courts
knew that
defendant
held,
that the
must-find
where the trial was
about
counterfeit;
morning,
were
the notes
9:30 that
the car was crowd-
ed;
on,
weight
that he was the last
so he was
charge
Failure to
facing the door and could not see the
by the
determined
is not
the evidence
of
nupiber
persons
him,
behind
but
heard a man
quantity of
of witnesses
say: “They
guy
want
this
in Denver
evidence;
get through
him
when we
with
here on
ex-
to mention
Fdilure
charge.”
the same
He could not see
passport;
planation of the
spoke,
they got
man- who
but
off
give
instruc-
converse
(cid:127)4. Failure
(cid:127)
recognized
the elevator he
mem-
three
hypothesized for convic-
tion on facts
jury
bers
who were on the eleva-
tion; and
tor when the statement was made. He
Singling
as witness
defendant
out
they
jury
knew
were members of the
credibility.
commenting on
spoke
because the man who
said “When
is that
Appellant’s first contention
get through
guy they
with this
want
overruling
motion
his
court erred
him Denver.”
government’s
the close
made at
It will be noted that counsel
jury.
discharge the
case
for defendant did not ask that the
morning
on
commenced
(cid:127)'The trial
polled
interrogated
regard
government
1953,
July 2,
and the'
article, and there is no evidence that it
day. That
on
its evidence
cluded
evening
jurors
read
or that
appeared
Kan-
article
an
any way by
them were influenced in
it.
City
in which it
the trial
about
Star
sas
appellant
upon
relies
Marson v.
that:
was stated
States, Cir.,
904,
6
United
but
'
indictment-charging Gi-
“Another
the facts in that case are different and
n cinto
passing
mon-
counterfeit
with
point
is not
here. Even if the
n
by a federal
ey
returned
has
jurors
to,
read the article referred
grand
in Denver.
ground
alone is not
for a new trial.
year,
States,
Cir.,
Bratcher v. United
4
this
Gicinto
“Earlier
149
742;
guilty by
Katz,
United
Coun-
States v.
a Johnson
3
found
'
F.2d 116.
at Olathe
The burden
ty-district
court
speaking
court,
prej
instructions the
show
for
counsel
any-
counsel,
“Now,
said:
to establish
resulted,
failed
udice
thing
de-
that I
Counsel
can
Further,
prejudice.
“Perfectly
right, Your
all
Hon-
fendant:
newspaper article
of a
take notice
or.”
Schino
put in evidence.
which was not
F.2d
Cir.,
States,
v. United
of Crimi-
30 of the Federal Rules
Rule
Moran,
provides-:
v.
Procedure,
States
United
nal
18 U.S.C.A.
States,
United
assign
any por-
Stunz
party may
“No
as error
charge
F.2d 575.
tion of the
or omission therefrom
objects
unless he
thereto before
*4
that
Appellant
contends
next
stating
verdict,
retires to consider its
distinctly
admitting
evidence
erred
the court
objects
he
the matter to which
issued
objections the
over his
grounds
objection.”
and
of his
Applica
August 23, 1952.
him on
to
provides:
52(b)
And Rule
thereof
1952.
pass
for it on
was made
tion
affecting
“(b)
Plain errors or defects
very day
received
The
that
rights may
passed
al-
be noticed
substantial
port
that
shows
the evidence
though they
brought
were not
to the at-
A.
to Robert
notes
of the counterfeit
one
tention of the court.”
Schroeder,
two others
“Generally,
day.
of
evidence
next
question
is,
The
for determination
shortly
the of
of accused
conduct
therefore,
alleged
any
of the
his in
with
inconsistent
which is
fense
jury
omissions in the instructions to the
admissible.”
is relevant
nocence
“plain
constitute
ing
errors or defects affect-
Law,
And evi
C.J.S.,
§
Criminal
rights”
appellant.
substantial
of the
admissible,
always
flight
es
of
dence
Having read the instructions
pecially
of the de
the conduct
given by
court,
opinion
we are of the
apparently inconsistent with
fendant
that no reversible
of
kind oc
this
States, 9
United
innocence. Strom v.
Cir.,
complaint
curred. The first
is that
United
Shelton v.
50 F.2d
require
find
failed to
to
States,
U.S.App.D.C.
the defendant knew the
bills
States,
$20
United
And see Merrill v.
passed by
*5
although
only
real
it
the
issue
beyond dispute in this
It was shown
and I think there was error
the failure
twenty dollar
case that three counterfeit
of the court to exclude inadmissible mat-
passed
type
bills of a certain
were
from their consideration.
ter
gasoline
fill-
payment for
of three
each
at
I first observe in
the
that the
ing
City
in-
in each
stations
Kansas
argued
prosecutor
jury in his
clos-
sitting
by
a man
stance
who remained
ing,
reply,
to which there could be no
employee
car
at each station
a
while the
follows:
gas
the
car tank. The
delivered
into the
saying
only
was the
“You
evidence that the defendant
know the old
that
passed
was
man who
the counterfeits
the
criminals return to the scene of
filling
by
testimony
three
crime and
identification of him
the
there is
the
again
employees,
happened
of whom took
station
each
here that
* * *
what
subpoenas
one of the
Neither
the
were
counterfeits.
any acquaintance
employees
and
ever had
out
Mr. Gicinto
three
them
nor
either of
of his friends were out there
[to
with defendant
previously
had
had
There is
ever seen or
contacts
oil
*.
no
stations]
way
had
of them made
he could find
where
with him. Nor
either
out
those
guilty
spontaneous identification of defend-
were
he had
witnesses
knowledge
unless
meeting
upon subsequently
him in
were
ad-
ant
ordinary
because there
They had been taken
dresses
on
course.
out
the witnesses.”
long
body
occurrence to
in a
after the
prosecutor went
This statement of the
picked
there
officersand
another town
supplied an
heart of the case.
It
up
prisoners
out of
line
defendant
that
addition to the identification
would
arranged by
identifi-
Their
the officers.
juror
feeling
justify a
certain that de-
solely upon comparison of the
cation was
guilty.
was true
fendant was
If it
recollection
with such
defendant
looks of
defend-
in addition to the identification
had
the looks
witness
each
guilty knowledge of the
ant showed
cir-
to him.
uttered the counterfeit
who
man
uttering
cumstances
he should
he was not at
testified
defendant
The
been convicted. But
are assured
speci-
filling
at the
stations
either
prosecutor
The
was
it was
true.
mis-
uttered or
had not
times
fied
taken. The evidence was that defendant
anything
counterfeits.
to do with the
had
gone
government’s
out to
had
identi-
standing
City
men of
business
Kansas
fying
(as
witness Schroeder to test
good reputation.
his
testified
really
says) whether Schroeder could
rec-
ognize
gov-
But
him.
at
time the
there was
doubt that
do not
I
n had
furnished
defense
or not defendant was ernment
whether
go-
the witnesses.
names of
Defendant’s
counterfeits
uttered the
who
man
just
sixty
guilty
than
I
air. So
hours
think
knowl-
ing
reflect
there did
out
a matter of hours.”
de-
transcript
edge.
shows
here
The
prosecu-
interrupted the
counsel
fense
posses-
It is obvious
showed
statement
tor’s
slight-
sion
did not have the
saying
incor-
knowledge by
was
guilty
it
light
tendency
est
throw
on the issue
indicating the
producing and
rect
he was
man who
witnesses.
names of the
list of
fore-
counterfeits in
case. But the
transcript reads:
going
prosecutor’s
as well as the
state-
ment
had
that defendant
demonstrated
Cope
for defend-
[counsel
“Mr.
guilty knowledge
your
tended to assure the
names of
is the
: There
ant]
against
that there was more
defend-
(indicating).
witnesses
ant than the identification and was un-
prosecutor]:
I have seen
“[The
fairly prejudicial to defendant.
it.
Furthermore
am unable to assume
Well,
Cope:
look at it.
“Mr.
newspaper
article about the de-
“Thereupon
being
court
fendant which
distributed' in
lobby
building
of the court house
being
where the case was
tried
prosecutor’s
Thus the
carried
carry-
talked
about
the elevator
jury room.
statement with them the
ing jurors up to
room had noth-
and it was
uncorrected
He
stand
let
ing
do
to with the verdict. The article
unfairly prejudicial.
exactly
contained
kind
of addition to
seems to me that
there
It also
the identifications that would overcome
*6
prejudicial
permitting
the issue
juror’s
hesitation to
act
the face of
concerning
confused
identification
the well understood likelihood of mis-
passport
travel
with evidence that
identity.
taken
It does not seem credi-
foreign
had been
countries
issued
jurors
ble me
all of the
remained
A
defendant.
search
conspicuous lengthy
oblivious of the
item
any-
person
produce
failed to
home and
only daily paper
in their
par-
about the
thing related to counterfeits but
they
directly
ticular matter
were all
con-
having
passport
been seized
the search
days.
cerned with for
objection
put
in evidence over
outstanding lawyer
An
in the civil
argued
prosecutor
jury,
“Now
practice
appointed
to defend in this
here,
passport.
deal
this little
I am case on account of the defendant’s indi-
very
good judge
thankful to the
this was gence
undoubtedly
did his best.
allowed to be introduced
says
place
He
he found himself out of
a continuation
of his meth-
trial of
this criminal case. But re-
escape
od of
*. The
gardless
date on that
properly
of whether he
made
passport (August 23rd,
day
preserved
points
all the
he should
uttering)
just perfectly.
fits
Ev- have, the record on its face raises doubt
erything
up.
all
lined
If there is
my
competent
mind that the
evidence
passing
got
trouble
these bills he has
alone,
identifications,
to wit:
passport.
just
That
a ticket out
vinced the
that defendant was the
county.
That
is not a ticket out
man who
the counterfeit. There
state. That
ticket out
the seems to me too much reason to conclude
territorial
limits of the United
improper
States.
matter contributed.
you
place
As
know
there
further would award a new trial.
notes
him were counterfeit.
com
The evidence