*1 MILLER, Before WILBUR K. BAZE- Judges. DANAHER, LON and Circuit Judge. DANAHER, Circuit 1945, appellant Indicted October rape. December was convicted of appeal presents complaints: His two Hayes supra, Co., Life Home Ins. note 2. *2 ju- weight mistakenly may judge in- that (1) and it affect the that the trial testimony.” going give your jury appellant ry The had ad- is to structed the charge judge explained prior serious of the mitted' convictions the nature give emphasized crimes; (2) point, is in- on and the evidence he would this verdict, par- prove support jury to must sufficient Government beyond aspect doubt, then ticularly and from of corrobora- a reasonable you tion, “Do what the lack of asked: understand it. talking an- Court ÍS' about?” Walker I go “Yes, you swered sir.”1 “Do want to stay ?” “On Woodley, on the stand or off the stand prosecutrix, one Della to “You want The Court: stand.” married of the occurrence to at the time go despite on the Court the stand what (since Riley Woodley, deceased), one you despite has and advice gave told only testimony concern- direct lawyers given you?” re- have Walker ing the crime the circumstances before plied “Yes, sir.” She and the details of its commission. taking perpetra- Appellant stand, identified as the the witness jury, my story, attor- said “Let me tell then will tor. the absence your neys questions.” appointed and District Court answer judge fully the defend- the trial advised was On cross-examination the accused rights urged concerning queried and him not convictions ant of his various judge thus: trial the witness stand. The take “ * * * Henry “Q. you finally, the same record Are said this brought undoubtedly yours out convicted of in will be who Walker Honor, “Judge, Walker, you and are the Your then said: 1. “The Court: Mr. 2. He jury, very gentlemen I was these two and defendant at the bar and ladies Philadelphia, Pennsylvania, attorneys appointed your in have been arrested fine * * day June, Pennsylvania, They 25th and I are able defense. They men. Washington, experience. C. on the removed to D. had a lot of have that, day July, “Now, they a com- because advised me 29th have against turn, they you you plaint made me one had been have instructed go Woodley, 28, 1944. November either stand as a Della can the witness Woodley my complain- Therefore, your you own behalf or can Della witness go fully witness, stay am to on trial and if I off the stand. You are aware according morning, you a bad Ninth have criminal record. this charged Constitution, to the You have been ten times with Amendment complaints rape. to make her be- You have been convicted four be here should jury got years you Judge court. and the of this times. You one time and fore the complainant, got Woodley, my pardoned. died You conviction in “Della a Therefore, May, 1935, larceny, August 12, six You there months. appear years rape. complaining for witness to before have served five You no against year any complaints a to make have served and six this Court months rape. thing, is it a lawful me however. And Honor, put man on of as- trial also been convicted Your “You have days aggravated assault, battery and four after four months and his life sault complaining witness, kill, apparently the death assault with intent to group people together gathered you got years have to 7 on that. 3% you stand, this stand to tell the Court what to take somebody if take the those “Now brought them and what told about me out evi- can convictions they facts, you your credibility against me without about believe to affect dence Woodley? however, Della a witness. my- they you, they “I know her as well as I know “Now have advised carefully. you me, I know when I see her. This You self. told advised go taken this stand was not You woman that have to on the stand. have don’t Woodley. psychiatrists I know her. I went two with- Della been examined long time, they say you days, woman is not than 30 less Woodley. Woodley, my pros- Della are of sound mind.” Della years ecutor, got Appellant age That is dead. is all I was 59 and the say.” prosecutrix was 22 time of the as- sault, according transcript. to the “Q. you robbery Riley of Vir- Did in the State know Wood- (No ginia? (No ley? response.) response.) “Q. you Riley “The Are the same Did Court: work with *3 Woodley? (No response.) person, Mr. Walker? “Q. my you prosecu- Did “The Witness: When work with him in against Alexandria, Virginia? (No me
tor makes here, statement re- sponse.) going then I am to trial. I
am not on trial. you “The Court: Did hear the
(cid:127)» [*] [*] [*] [*] prosecutor, Mr. Walker? you going “The Do “The I Court: understand Witness: am not Della against me, then I al. sault and year the same stand and makes her “The Witness: “Q. Pennsylvania [*] question? I 1946 was Woodley. am The next [*] battery? not on Henry convicted [*] When trial. question Walker My complainant know [*] aggravated (No response.) she takes this I am on tri- who in the [*] is, complaint the State are [*] you as- is Della la answer it. knew her? A. She lived here in Washington. ley? lady dead and buried now. “Q. “Q. “Q. Woodley * who took the stand here Woodley? IA. Did Where did she live when Did * that you you did, yes, * I know Della Wood- A. know the know. * It wasn’t Del- sir. She * young today, * you is “Q. you When was that “Q. that you ques- Would answer the gets knew her? A. When (The she on tion, please? witness shakes you happen- stand and tell what negative.) his head in the ed— your “The Court: Which an- “Q. you Did know her in 1944? swer, you that will not answer the your I A.—then ques- will answer question you were not convicted? tions. thought “The Witness: I I was “Q. you Did know her in 1944? prosecuted being by one Della Wood- A. She haven’t made com- ley. I know her as well Ias know plaints against before this Court myself. you put up That woman all Why get up me. should I here and here, Woodley. that ain’t no Della I against testify myself? know her. * * * * “The Court: How about this con- your “The Court: What an- Attorney viction that the District swer? you about? asked “The Witness: When Della Wood- Well, “The Witness: that there ley complaint against me, her makes something or other that some- then will answer him.” body else had me in the court room question went, And so it and answer being I am not for. tried for that. including to and down a denial ***** appellant that he had ever seen the “Q. you Henry got Are the same “until the stand. my Walker who 1935 was convicted This is the first time life.” larceny? (No North Carolina of sponse.) re- “The Court: Would the Court be you say you correct did not [*****] take her? Pennsyl- record of this conviction was not in offense. He was returned appears July 29, 1953, but it evidence Walker vania to stand trial in this years to serve sentenced for the case. 3% you, you acquainted der know are I don’t her. with “The Witness: fact, may pass upon credence or you force Then did Court: “The weight credibility or the to [sic] you ? intercourse to have will attach the seen her I never “The Witness: gave, he for no it is other reason.” *” * * before. obj There was no tri ection ‘ examination On redirect given, despite al instruction as Woodley of whom Della insisted that requirement of Rule 30 of the Federal of Co- the District spoke he had died Procedure, Rules of Criminal 18 U.S.C. August 12, custodian 1953. A *4 lumbia on party may assign any A.: “No as error of Vital Sta- Bureau from the
of records
portion
charge
the
of
or omission there
of
examination
that an
testified
tistics
objects
from unless he
thereto
the
before
year period failed
a two
records over
the
jury
verdict,
retires to consider its
stat
person
any
named
of
the death
to disclose
distinctly the matter to which he ob
Woodley.
Della
jects
grounds
objection.”
and the
of his
objection
timely
made,
Had such
been
that the
record discloses
The
judge
opportuni
the
would have had an
discerning
under exami-
and acute
was
nation,
ty
any
to correct
claimed error and to
readily
glibly
talking
when
give appropriate
jury.
instructions to the
po-
his
supplying answers which served
States, 1950,
Villaroman v. United
87
incriminatory
sition,
as
evasive
to
while
U.S.App.D.C. 240, 241,
261,
nonresponsive when interro-
or
matter
A.L.R.2d
The
of the
evasiveness
gated
the
As to
vari-
his record.
about
appellant and his failure or refusal when
concerning prior
questions
criminal
ous
witness,
under the circumstances de
convictions,
accused answered
had the
might
scribed,
properly permit
jury
the
affirmative,
have
that would
ended
in the
to draw such inferences as the situation
neg-
in the
Had he answered
the matter.
ative,
suggested.
States, 1926,
Raffel v. United
have been
would
the Government
494,
566,
1054;
46 S.Ct.
70 L.Ed.
of his con-
introduce the record
bound to
Caminetti v. United
U.
identify
person
the
him as
viction
470,
S.
The
L.Ed. 442.
many
record. To
such
in that
named
judge
jury
that
the
made it clear
whatever;
response
questions
no
he made
judge
facts,”
the
“the sole
of
on the
replies
may
as
to
he made
such
be
others
highly
charge,
the
basis of
whole
favora
samples herein re-
from the
discerned
general
appellant,
in
to the
it
ble
fairly
cannot
judge
produced.
made it
trial
clear
judge
said that the trial
be
invad
indulge
any
jury
not “to
that the
jury's province.
do not
ed
We
doubt
the
any
that there
or
inference
presumption
always
practice
is
for the
that it
better
may
any
what he
have
relation between
is
government
prior
to establish
convictions
may
have
or
been convicted
been
before,
not
by introducing proper
record.
can We
indulge any
you
not
are
light
case,
say,
the whole
the
against
merely
presumption
It
him.
preju
to do so was here
the failure
that
witness,
any
he,
other
when he
dicial.
may
credibility
stand,
have his
takes the
II
weight
or
credence or the
of his tes-
the
alleged posses- Although
argued
timony
us
attacked
it is
that the
record,
support
alleged criminal
in or- evidence is insufficient to
the ver-
sion
anof
you
judge
reference,
is and
are the sole
same
the court
fur-
case
facts,
In this
your
testimony
charged:
If
what
was.
or
ther
Court’s, you
particular
from the
case
de-
recollection differs
“Now
your
in his own
understand
recollection
has taken
stand
will
fendant
having
The Court’s recollection
and he has testified to
controls.
behalf
prior
confronted with a record which
record.
the Court
he was
criminal
If
rape,
testimony
wise,
convictions of the crimes
showed
refer to the
should
assault,
assault with
the Court is
also
intent
are to understand that
and
kill,
judge
of the
Court recalls.”
of what
the law
the sole
anything
than circumstan-
other
tes
diet,
particularly,
and more
supports the
evidence which
tial
corrobo
timony
lacks
of the
prosecutrix’ story,
what
and this is
ration,
Because
otherwise.
we conclude
* *
requires.
charge
Kidwell case
of the seriousness
sug
already
unusual circumstances
safeguard
“But
the defendant
carefully
gested herein,
exam
have
we
by requiring corroboration in this
transcript.
Kidwell
entire
ined the
thing.
sense is one
To
around
throw
App.D.C.
immunity requiring
him a wall of
“We are aware
this court said:
testimony
eyewitness
of an
will
sus
for this offense
a conviction
evidence,’
‘direct
is more than
injured
upon
tained
circumstantial,
support
party
where the courts have
alone. But
prosecutrix’ story, is another. We
surrounding
held,
circumstances
are satisfied that the rule stated in
parties
at the time were such as to
the Kidwell decision is one which
probable
point
ac
to the
should not be overthrown.”
indirectly
cused, or,
least,
corroborate
States, supra, U.S.App.
*5
testimony
prosecutrix.”
of the
the
*The
page 17,
page
D.C.
at
F.2d at
case has
to re
Kidwell
quire
since been held
636.
corroboration in
“in
cases
the
Although strong argument
a
can
sense
there must be
circumstances
rejected
proposition
be made for the
in
proof
support
pros
in
which tend to
the
Ewing
here,
the
case and re-advanced
the
* * *
story,
ecutrix’
and for lack of majority has concluded that the Kidwell
it Kidwell’s conviction for one offense
interpreted
applied
rule as
and
in the
was reversed.”
Ewing case should be reaffirmed.
1942, U.S.App.D.C. 14, 17,
135 F.2d
Wigmore’s
Professor
treatment
633, 636,
denied, 1943,
certiorari
proffers
problem
a rationale not
63 S.Ct.
had conf defendant’s at the time twenties of the attack that, If ession.6 it means less than was married to a man and engaged known to have gambling it hard to see how it could fighting.7 relate in and Commenting community on the crux of the issue as where she resided and' was presented, known, there the court said: “In this we do think the evidence support charge case defendant count convicted was under this rises to the re- upon quired Id., App.D.C. the bald statement of the standard.” prosecutrix page the acts had extended continuously period years over a of three Opper Cf. defendant, in the house his where U.S. family wife and In resided. view of the respectable standing defendant, husband, Riley Woodley, 7. Her was em- evidence, incorrigi- ployed shown and the in Alexandria. When Walker was prosecutrix questioned ble character of the and her whether not he reputation veracity Woodley, bad for truth and worked he Alexandria .618 night question, Hospital pelvic 8 P.M. on for a examination About by- approached prose- residence was at her and added that
she
she did so.8
her husband
He told her
cutrix
Walker.
that
out,
testified she was taken to
hiding
hospital
trouble,
Bureau,
need-
he
Women’s
thence to the
was
her,
in a seclud-
had him
where
was examined
her
ed
Walker
and where
painted. Sgt.
spot
awaited her.
her husband
bruises
took
ed
where
Howe
get
told her
her
to the
He
not to
excited but
scene the follow-
right
away,
day.
they
There
husband “wants
because
found a hat be-
longing
very badly
prosecutrix.
had
he
assaulted this fellow
There
looking
police
ground,
for him.” evidence that the
50 feet
some
tracks,
room, put
went to her
on her hat
from
railroad
“had
con-
She
been
coat,
siderably
half
disturbed.”
The officer de-
went with Walker
grass
they
strip
trolley
some
to a
line
boarded scribed the
brush and
block
where
adjacent
point they
paved
road.
streetcar. At
30 feet wide
the
changed
a transfer
“good eighth
was a
cars and
their ride. The scene
of a mile”
continued
route,
pros-
conversation en
after the
the nearest house.
ecutrix had told
efforts to
Walker of
slightest suggestion
no
There was
gambling
fight-
stop her
husband’s
proof
part
motive on
ing,
boy,
Walker said
was a nice
“He
charge
prosecutrix to
Walker with the
They
quick-tempered.”
little
sat to-
Her identification
offense.
of him was
gether
got
hour,
off
about a half
unchallenged.
positive and
Indeed it is
neighborhood
in a
streetcar
secluded
expect
entirely reasonable to
that she
running
*6
down
toward a
walked
a street
forget him,
would never
under
cir
the
my
track “where
he had
railroad
he said
narrated,
riding the
cumstances
after
waiting on me.” There he throt-
husband
lighted
thirty
streetcars for some
min
pulled her
her and
force
down
tled
through knee-high
being
utes,
attacked,
then
has
as
grass, and
bushes and
She
been described.
testified that Walk
struggle,
assaulted her. She
after
scene and
the
er left the
walked down
pleaded
if he
him told him
would
with
as
railroad tracks
she set out on foot and
go
police
she would not tell the
her
let
policeman.
she found
walked until
lost her
would return
She
hat
home.
but
despite
Her narrative was unshaken
prosecutrix then
the scene. The
at
vigorous
competent
cross examina
walked, perhaps mile,
encounter-
before
Highly important
tion.
further were the
motorcycle
she told
officer whom
upon
appel
circumstances attendant
“just
happened me and
what had
he
taking the
lant’s
witness stand. He an
Sgt. Howe of
the scout car.”
called
enough
glibly
point
every
swered
on
Squad
Tenth
her
Pre-
saw
at
Sex
recognized
which
he
be
favorable
alleged
had been
station. “She
cinct
sparred
and he either
himself
or evaded
objected,
thereupon
raped.” Counsel
likely
otherwise.
was silent
It is not
to the
Government was entitled
but the
jury was
that the
oblivious to his claim
complaint. The officer de-
of her
fact
prosecutrix was
that the
“not the Della
her
with
the back of
coat
several
scribed
Woodley”
jury might
The
he knew.
have
twigs.
on it and a
stains
number
mud
that he
identify
concluded
failed to
her.
sergeant called Policewoman Brown-
The
Woodley”
He testified
“Della
was
and “direct-
at the Women’s Bureau
low
dead
the records
but
He
otherwise.
report to the 10th Precinct and
deny
her to
ed
affirm or
refused to
that on the
Gallinger
complainant
transport,
night
the crime he had
taken her “out
Supra
* * *
pp.
[223
4-5
answer.
refused
I had
.to
few times
been
there.
615].
F.2d
complaint
that there
I am aware
was this
complainant.
I
interviewed the
Brownlow left
the force the fol-
8. Miss
..
certainly recognized the
lowing year
I
statement
and did
recall details
my type
doings,
wording,
going
her
but remembered
I took
one of
Tenth Precinct.
“That was
forth.”
the.
Appellant
riding
University,”
in October
or “down
was indicted
Catholic
alleged
line,”
an
in November 1944.
or “seized
near a railroad
during
was
until June 1953.
whether
He
not arrested
throat” or to state
long
working
delay
explained.
period
in The
is not
His tri-
relevant
he
the
Virginia
place
prose
years
took
al
after
the al-
with the husband
nine
leged
“questioned
I
when
offense. For
will dis-
His attitude
reasons
cutrix.
might
regarded
cuss,
corro
think that the trial court commit-
also
have been
plain
failing
ted
error in
to direct an ac-
to some extent.”
v.
borative
U.S.App.D.C.
States, supra,
quittal.1
at
United
17, 135
page
page
F.2d
636. Other cir
at
majority
jurisdic
In a
American
not be set forth
cumstances
need
tions,
England,2
as in
no evidence corro
testimony.
corroborated her
also
borating
prosecutrix’ story
requir
conviction,
story
highly
ed
charge
save where her
fa
The
as a whole
inherently
jury
incredible or is rendered
saw
to the accused.
vorable
improbable by
witnesses,
other
evidence.3
oth
evaluated
heard the
their
and
testimony
however,
jurisdictions,
including
er
guilty.
and found the
Columbia,
person
District
no
can
his own
The accused exercised
choice in
prosecutrix’ testimony
convicted
taking the stand. Bruno v. United
287, 294,
developed
alone.4 The
States, 1939,
District’s rule
U.S.
from our
say
decision in Kidwell
v.
cannot
United
84 L.Ed.
We
fairly
States. We said:
jury
conclude
could not
“ * * *
Curley
beyond a reasonable doubt.
We are aware that a
conviction for this offense will be
denied, 1947,
389, 160
F.2d
certiorari
upon
sustained
837, 67
S.Ct.
L.Ed.
injured party alone. But where the
say
assurance,
can
fair
1850. We
held,
courts have so
the circum-
pondering
happened,
after
all that
surrounding
parties
stances
error,
judgment
if there be
was not
point
the time were such as to
to the
*7
thereby substantially swayed and sub
probable
accused, or,
of the
rights were not affected. Kot
stantial
least,
indirectly
corroborate
the tes-
5
States, 1946,
v. United
teakos
750,
timony
prosecutrix.”
765,
1239,
66
the evidence would have been sufficient Curley rule, under the in a case not in- meaning rape,
volving plain of our
corroboration rule cases is that acquittal
there must be an as matter of where, here, prosecution
law fails required produce direct or cir- corroborative
cumstantial evidence. SCHWARTZ, Appellant,
Samuel al.,
William ROBINOWITZ et Appellees.
No. 12303. Appeals, States Court of District of Columbia Circuit.
Argued March
Decided March Alpher, Washington, C., M.
Mr. Sol D. Spiegler, with whom Mr. E. Louis Wash- ington, C., brief, ap- D. was on the pellant. Miller, Washington, Mr. Herman D. appellees.
C., for BAZELON, FAHY Before and DAN- Judges. AHER, Circuit PER CURIAM.
Only
sellers, in
the written real'
here, fully per-
contract involved
estate
agreed
formed on
settlement date.
*10
days thereafter and
Several
before the
buyer
performance,
tendered
the sellers
U.S.App.D.C. 389,
denied,
14. 81
certiorari
1511,