*1 BAZE- Before PRETTYMAN Judges,
LON, and WALTER sitting Judge, BASTIAN, M. District designation.
PER CURIAM. appeal an order of the is from granting defendant-ap-
District Court pellee’s this suit for dismiss ..notion Judge, Bazelon, Circuit dissented. plain- conclusion exoneration agree tiff-appellant’s evidence. We such “evidence the Dislrict Court that necessary] re- failed to establish [the agent principal lationship be- [parties].” dismissal
tween the is, therefore,
order
Affirmed. KITCHEN, Appellant, E.
Lawrence America, STATES
UNITED Appellee.
No. 12229. Appeals, Court States of Columbia Circuit.
Argued Oct. Jan.
Decided Rehearing In Banc
Petition 3, 1955. Denied Feb. *2 by witness, Tyree,
defense. This
one
night
the al-
clerk of the hotel where
leged
Kitch-
murder occurred and where
Tyree
Kitch-
saw
en lived.
testified he
hotel)
(not
en in a restaurant
Hysan
about five o’clock on the aft-
preceding
crime,
ernoon
and Kitchen
spoke
rent,
to him about
which he
pay
day.
said he would
A num-
the next
people
Hysan
ber of other
and
also saw
drinking together
long pe-
Kitchen
a
for
of time in
riod
the restaurant. About
morning
guest
two-thirty
the next
a
Tyree,
the hotel came to
and as a result
of their conversation the
went
to-
gether and listened outside the door to
Tyree
room.
Kitchen’s
heard a loud
snoring noise; nothing further was done
duty
about it.
went off
at seven
morning.
o’clock in the
Just after
gone
young
to bed a
man came to
gave
key
his door and
Mrs.
a
which he said he had found and which
tag showing
key
it to be the
room.
Kitchen’s
At about one o’clock in
Martin, Washington,
Mr. Robert
D.
(appointed by
the afternoon of that
C.
same
a maid
Court),
appel-
this
for
having reported
him, Tyree
lant.
went with
her to Kitchen’s room and there found
Carroll,
Atty.,
Mr. Lewis
Asst. U. S.
lying
a man
face down
the floor with
Rover,
with whom Mr. Leo A.
S.U.
pillow
under his head.
ex-
Atty.,
Flannery,
and Mr. Thomas A.
pressed the view that
the man was
Atty.,
brief,
Asst. U. S.
were on the
for
undisturbed,
drunk.
and
He
appellee.
manager.
was made to the hotel
Before
MILLER,
WILBUR K.
PRET-
three-thirty
About
the same afternoon
TYMAN
BAZELON,
Judg-
and
again
room,
to Kitchen’s
this
es.
lodger,
time with another
and tried to
man,
rouse the
who was still on the
Judge.
PRETTYMAN, Circuit
Failing
him, Tyree
floor.
to rouse
no-
Appellant Kitchen was indicted
police. The
tified the
officers decided the
perpetrating
robbery
and for kill man was
sick
called an ambulance.
Hysan
perpe
one
in the course of
over,
the man
A doctor turned
and as he
trating it. He was
convicted murder
stopped
dy-
breathing,
man
so the
did
degree.1
appeal
in the second
fol
Tyree recognized
at that moment.
lowed.
Hysan.
was cross-examined at
urged
principal point
length
fifty pages
(some
con-
in the tran-
here
sought
put
script).
cerns a
to be
redirect ho
recross-
to a
After
1. The facts warranted the court’s instruc
This was file second trial
the cause.
degree
degree
tion on second
murder. Goodall
of first
murder
Conviction
States, D.C.Cir., 1950,
trial was reversed
U.S.
the first
this court.
App.D.C. 148,
397,
States, 1953, 92
Kitchen v. United
A.L.R.
U.S.
382,
certiorari denied
was no
presented up-
If the
had been
single
permit
theory
the
ruled- tfat he
advanced,
on the
now
it would
question,
had
whether the witness
have been in a different form from that
charge
actually
to forfeit on
certain
presented.
elected
in which it was
It
for au
day
on a certain
but he asked
(Tyree)
would have been whether he
point.
next
on the
the
thorities
in
had
fact once made a false
to
argued,
point
police, putting upon
further
and the court
someone else
finally
question
held that such a
on a
by him;
an
blame for
offense committed
impeachment pur
gist
question
collateral
issue
would not have
only
poses
when a con
could be allowed
been the
forfeiture
collateral.
If the
question
put
the witness
occurred. The
Tyree,
viction of
to
in the
upon
ruling
part
regular
the local
cross-examination,
was based
course of
part upon
that
and in
the view
the form now
statutes3
advanced for considera-
going
up tion,
to be tied
properly
“otherwise we are
the trial court could
have
go
permitted
issues that
collateral
don’t
with
it. But
the situation as it
actually
itself.”
way.
of the case
the merit
occurred was not that
question
proffered
time,
at that
clearly
The trial court was
upon
theory,
or
form,
that
or in that
ruling upon
question as
.Inits
correct
permit
and the trial court did not
it to be
presented. An election to
col
forfeit
problem
asked. Our
is whether reversi-
regula
police
for violation
lateral
ble error was thus committed.
not a conviction
crime.4 But
tion is
upon
A
combination
three considerations
argument
here our attention was
problem.
controls the answer to the
In
problem.
another view of the
directed
Columbia,
Clawans v. District of
D.C.
a violation of Sec.
Art.
This was
Cir., 1932, App.D.C. 298, 299,
Regulations
61
XIX,
62 F.2d
of the Police
383, 384;
Crawford v. United
of Columbia.
D.C.Cir.,
59
41 F.
1357(1901),
amended,
as
D.C.
3. 31 Si.at.
2d 979.
(1951).
§ 14-305
Code
5. Pullman Co. v.
Hall,
Cir., 1932,
55 F.
States, D.C.Cir., 1941,
Wigmore,
4. Thom as v.
Evidence
977-985
§§
905, 907;
167, 169,
(3d
1940).
Aip.D.C.
ed.
hopeless
Re-
sought
be would
morass.
become a
place the
ought
proper,
to be
remotely approached call is often
but it
Tyree only
asked
good cause is
confined to instances where
shown,
As will
trial.
issue on
merits of the
trial court must
here-
and the
from our recitation
seen
respect
matter.
testimony,
link
discretion in
wide
inabove,
while
particularly ma-
chain, was
anot
problem
place
In the third
against Kitchen
The case
terial one.
put
If
was not
to the District Court.
drink-
facts that
rested
opinion that,
ques
we were of
had the
Hysan
before
afternoon
urged
theory
tion been
we are
together
they
crime;
considering,
now
would have
there;
*4
drank
and
room
Kitchen’s
compelled
recall,
the
we
been
might
allow
Hysan’s
had
Kitchen
the offense
after
hat,
to reverse. But
not
have
we are
possession;
in his
suit
overcoat and
opinion.
theory
that
Even
the
town; and
once left
Kitchen at
that
discussion,
under
the remoteness of
conflicting
gave
himself,
he,
testi-
that
mony, flatly
question from the merits and the fact
contradicting
second
at the
placed
it was a recall would
that
have
given
testimony
the first
at
he had
trial
matter within the sound discretion of
few facts to
The
one.
say
the court. We cannot
it
under
erred
vital,
other wit-
not
and
testified were
such circumstances when its discretion
The
most of them.
nesses testified to
was never invoked.
asked
most that could
upon
through-
fairly
The case was
tried
impeaching inquiry
was wheth-
ably
vigorously
out. Kitchen was
and
report;
since it
had
a false
er
made
he
defended. We think the trial
acted
court
probably
public
would
record he
was a
within its reasonable discretion.
Its
affirmative, and
have answered
judgment will therefore be
matter would have ended.
there the
Affirmed.
is read it
is
this whole record
When
how
answer could
difficult to see
that
Judge (dissent-
BAZELON, Circuit
result.
It would have
have affected the
ing).
difficult,
impossible,
if
for the
been
prosecutor
in summa-
stated
jury
testified As
to conclude that
jury,
matters,
witness
falsely
Government
tion to
about the routine
also
person
“only
by
one other
others,
was the
which he recited.
described
gotten
[appellant’s]
Tyree’s being
possible suspect,
into
could
As
who
injuries
nothing
in-
the fatal
us
be
where
seems to
but
room”
there
many
con-
effect,
therefore
speculation
Because it was
that
and
flicted.
appear
could have committed
that he
in the record which con-
facts
ceivable
crime,
jury was bound to view
the idea.
tradict
corresponding
testimony
cau-
with
his
place the
next
In the
affecting
Hence,
his
information
tion.
have,
has,
considerable
must
and
court
importance.
credibility was of critical
permitting recross-examina
discretion
trial court ex-
which the
some discretion
The
court has
The
tion.6
Tyree’s
cross-examination,
limiting
cross-examination
but
on
cluded
in
this
heavily
directly
on his credi-
judge
did not limit
the bore
case the
ques-
purpose
inquiry
bility.
obvious
con
The
cross-examination.
information which
to elicit
announced
tion
defense
until
tinued
recently
had
made
questions.
that he
A trial
show
more
no
he had
that
police
pur-
permit
of witness
recalls
a false
cannot
placing
pose
the blame on someone
and with
firm limitation
without
es
did,
which he
committed.
a crime
cogent
If
a trial else for
it
reasons.
out
Mullineaux,
Dairy
because defense counsel “showing upon entering admissibility a maid ment for that found a man lying charge against [Ty- placed face down on the floor in under- ; thought drunk; [collateral],” clothes he anc. the man was ree] that forfeited approves ques- notify police he did not this exclusion until couit p. respectfully about this 3:30 m. tion. I submit which, legal hairsplitting distinction only testimony concerning ap- case, capital particularly in undercuts pellant’s whereabouts or near those at concept of fundamental our traditional very early morning hours came from Accordingly, I would hold fairness Berry, who testified ruling exclusionary erroneous. appellant depot he met near a bus Tyree's testimony January least at 12:40 m. a. and that- together upon they important issues liquor and related in search of (1) appellant in conflict: until evidence was about 1:30 which the a. m. when *5 during injuries saying depot, fatal time which the inflicted, him near the bus that he catching (2) appel- been could have a bus for Scranton at 1:30 during Appellant such time. a. m. lant’s whereabouts testified that he did Testimony supporting time, although the view that the catch the bus at that he injuries caught inflicted between testified fatal were at former trial that he January and 3:00 a. m. the bus 4:30 1:00 a. m. a. m. given Zand- was jabil, agree I am unable to with this court occupied hotel room next who Tyree’s strange testimony related Zandjabil appellant’s. stated that to merely “to routine matters.” His testi during someone hours he heard those mony heavily ques on the crucial go appellant’s if to room as leave injuries tion of when the fatal were in return; shortly and then men’s room jury flicted. And if the had known of shouting, he heard voices thereafter “Stop Tyree’s previous po false to the up! Stop it!” and “Shut Shut it! lice, might very rejected it well have up!”; were more than he believed there testimony supporting the view that the voices, and the continued for voices injuries during fatal were not inflicted ten minutes. about very early morning hours. In that hand, event, might testimony, jury adopted the other indicating testimony Zandjabil may that the fatal of witness be read as and con during injuries injuries not inflicted those cluded that the fatal were in during morning very early He stated flicted those when hours. hours he heard vicinity although appellant’s that, from he the shouts room. And m., considering appellant’s 2:30 a. room at about conflict in the of evidence concerning appellant’s complaint from one of of a whereabouts dur a result as hours, might testify), jury (who those did the tenants reason acq only ably he heard sufficient because doubt to did not enter room; principles applicable snoring at about *Settled from uit.1 stranger (who m., require was such circumstances a total reversal a. 7:00 identified) appel- left a new trial.2 never otherwise “ * * * was, which, as the case where error occurs in this The evidence “entirely range possibil jury, circum within of a reasonable told the linger ity, may have affected verdict this evidence of a That stantial.” jury, appellant required explore apparent guilt from the is not doubts jury jurors of the after the minds prove in an effort candor prosecutor’s it did in. concluded. He fact influence their evidence all the type Little of case in verdict.” v. United isn’t “This said: degree 866-867, Cir., you find a 96 A. should L.R. 889. See Kotteakos v. United [murier].” America, STATES UNITED Petitioner, MATTHEWS, S. Burnita
Honorable Judge, District Court United States Columbia, Respondent. the District of No. 456.
Misc. Appeals, States Court Circuit. District Columbia 14, 1954.
Argued Dec. 13, 1955.
DecidedJan. EDGERTON, Before BAZELON
FAHY,
Judges,
Circuit
FAHY,
Judge,
*6
question may
as whether
be stated
under the District of Columbia Code
through
jurisdiction may be obtained
by publication
(cid:127)personam
notice
in an in
against
corporation,
action
a domestic
us on mo-
comes before
tion
the United
file
States
leave to
petition
against
for writ
a
respondent,
of mandamus
judge
of the District Court.
The United States had sued the Potomac
Co., Inc.,
corporation
Chemical
char-
under
tered
the laws of the
Columbia,
money judgment.
for a
,
,
„ ,
-j.
,,
(cid:127)
Tr
United
a oa a being
any
States
unable to find
„ ,,
~
representative
corpora-
or
officer
of ,,
,.
,
.
(cid:127)
^
m the District of
tion
Columbia on whom
,.
,
,
,
, ,,
.
personal service could be made and the
,
,,
,
,
having
,
...
Marshal
returned the summons
,
„
, „
,
,
...
found,
by publi-
an order for service
by judge
cation
made
of the Dis-
trict Court.
Publication
then had in
procedures
accordance
set forth
13-104,13-108,13-109,13-110,13-
in §§
States,
750, 763-765,
1946,
justice
66 S.
328 U.S.
standards
cannot be relaxed in
1239,
Braswell
90 L.Ed.
v.
such a
Ct.
situation:
fact
that an ac
States, Cir., 1952,
undergone
has
cused
than
more
one trial
just
right
does not dilute his
and law
Unfortunately
Leyra
Denno,
ful
a new
here
be
treatment.
See
trial was
third since
U.S.
74 S.Ct.
[98
948].”
L.Ed.
set
aside
erroneous
instruction.
v. United
Caldwell
—
States, 1953,
U.S.App.D.C. —,
(dis
Kitchen v. United
App.D.C. 382,
U.S.
F.2d 370
senting
opinion).