Neufield v. United States
118 F.2d 375
D.C. Cir.
1941
Check Treatment

*1 al. NEUFIELD STATES. et v. UNITED

No. Appeals

United for the States Court of

District of Columbia. 27, 1941.

Decided Jan. *3 Curran, Atty., Edward M. U. S. Tarver,

William Atty., S. both Asst. U. S. Washington, C, appellee. D. STEPHENS, MILLER, Before RUTLEDGE, Associate Justices. STEPHENS, Associate Justice. appellants Neufield, Foley, Flynn Rubin, hereafter to as referred de- fendants, by name, were, on November upon convicted jury *4 District Court for United States the District of Columbia the crime of Rubin, robbery. 18, on November moved separately, Neufield, Foley Flynn, and and on November jointly moved and several- ly, a for new grounds trial on various which need not here be stated. mo- denied, tions were on December and each the defendants was sentenced imprisonment penitentiary for years. from three to fifteen The statute provided under which were indicted violence, by that “Whoever force or wheth- against by er resistance or or sudden stealthy by snatching, putting or seizure fear, shall person from the or im- take possession any- mediate actual another thing value, guilty robbery ..” Act of March 31 Stat. c. (1929) D.C.Code tit. § 34. The charged indictment de- that the § fendants 10, 1932, on the District in. June “by violence, Columbia and and force resistance, against fear, and putting stealthy sudden and seizure and snatching, steal, feloniously take and did ,and away, carry from person, off immediate, possession actual Elgin, being, one E. Thomas then and there wit, money, a sum certain nine of. twenty-one money, thousand and dollars twenty- value of nine thousand dollars, property one Washington Bank, Savings Mechanics MILLER, Justice, dissenting Associate corporate; body . . ..” part. stated, Briefly the evidence that: showed Washington On Me- June Savings operated chanics Bank a branch Georgia on Avenue in the District. When opened day, for the bank business on that money had been distributed from the vault tellers, drawers four includ- the cash ing Elgin, mentioned in the indictment. At about o’clock five men into the eleven came David, Tedrow, doorway, apparent- Levi H. and bank. One stood Richard lookout; Miller, ly Washington, C., guns I. all Robert D. two drew ordered appellants. employees were customers in no —there

3*79 years imprisonment, had for several up their hold bank at the moment —to prior arraignment trial of hands; to the leaped counter over the two Al- present been confined includ- defendants employees seven, all herded — catraz. room bookkeepers- a rear —into lie on compelled downward them face When instant case was called floor; held money one of robbers then Flynn trial each moved Neufield and bag which the others loaded the into com a continuance. Neufield moved for drawers; men five tellers’ pulsory' process Spencer against Waldron. left, drove single file and then the bank in all Each moved close of defendant at the been away in which had automobile the evidence for directed verdict parked corner. curb around the guilty. requested Each a view customer, left, a After the robbers had jury. Each for an arrest of the moved leave, Gritz, seeing entered one them judgment. All these motions were de Jacob of' bank, walking there, one but on saw rulings by nied and out of these employees found the the rear room into questions presented court arise the A check- on the floor as above described. appeal. topic sepa We shall discuss each $9,030.36 missing, up disclosed rately, stating thereunder such further $3,024.23 from the drawer taken understanding facts to an Flynn by Elgin Elgin. identified points raised.1 Gritz; Foley identified *5 Sanderson; teller, Neufield bank Richard S. By The motions a continuance. for Randolph and was identified Wallace F. When the for case called was Neufield. trial a wife, Randolph, who drove Sarah E. statement, the of which substance morning question, bank on the to the follows, was made in behalf of Neufield robbery progress. arriving was while the his counsel Solomon: an ar- Pursuant occur, They robbery Randolph saw from the rangement whereby Attorney the District bank, Randolph Mrs. near the door notify days was to at least ten Solomon through the bank window. car prior to trial of the date fixed its for Randolph Both Mrs. identified Rubin also. commencement, Tarver, William S. stuffing of the into saw the them Attorney Assistant United States described, bag both saw above case, charge telegraphed at Solomon five men leave bank. 6, his office in New York on November defendants were on Febru- The indicted 1939, assigned case would be for 1, Foley 19, ary arraigned 1933. was June trial November 15. on Solomon was out Neufield, Flynn Rubin, September city consequence did re- not 1939; 21, pleaded guilty. each not telegram until November 8. ceive the IS, for trial November case called was (who apparently Solomon and Neufield lapse 1939. The the in- time between large bail) attempted at then unsuc- arraignment and the dictment and trial cessfully locate latter’s witnesses. due, according defendants was to the filing Between the date of the in- record, Flynn fact that Neufield and to the dictment, February 1, 1933,and the time of serving in-New in the meantime were Neufield, September 21, fixing bail for Foley York for another offense. Where 1939, in Sing Sing he had been confined why they were were not Rubin difficulty Prison. increased the of lo- This appear. arraigned does not and tried sooner cating Process were out witnesses. servers According to statements made the com- at help private a detective to locate and also in the instant case mencement trial continuance, In them. the event a Neufield, Spencer for Wald- one counsel Solomon, opinion he would be able apparently fifth man involved in ron, prepare locate the properly the case and bank on at the events Neufield had waived extradi- witnesses. June had, apparently a not stated not date but appears record that tion. It 10, pleaded guilty long represented after a Neufield since his had Solomon June 21, September gist describing 1939. The charge arraignment, same offense as is the case, continuance was for subject of had been sentenced of motion representations appeal represented trial 1At Neufield Bar. On except that both Neufield York Abraham Solomon of the New are the same represented by David, Foley by Flynn by Flynn Tedrow, Bar, R. L. appearing. David, H. and Rubin Robert I. Levi Solomon Miller, of Columbia all of the District opportunity pre- cumstances alleged and in need of further view of the further fact days’ pare locate that requested by ten notice defense of case procure Neufield’s witnesses and to their attendance counsel of the date of trial through compulsory process; guaran- given, say we judge cannot the trial reasonably that an ac- must tee Sixth Amendment have concluded that prosecution showing sufficient, in a cused criminal “shall en- for a continuance was cannot, joy compulsory therefore, say . . . we that he process obtaining for witnesses in his favor abused in refusing discretion con- Indeed, urged. . tinuance. think showing we for clearly If, continuance was insufficient. granting refusal aof out, under the circumstances set continu- continuance is a matter of discretion of the granted, ance must be will be no end there judge application Avery to whom is made. delays Moreover, in criminal cases. it Alabama, 1940, 444, 308 U.S. 60 S.Ct. was appear not made to in Neufield’s motion 321, States, 84 L.Ed. Isaacs v. United new trial that harm came to 1895, 159 U.S. 16 S.Ct. 40 L.Ed. through the refusal of the continuance. States, Tomlinson v. United general charged' terms While the motion App.D.C. F.2d A.L.R. continuance, granting error it denied, certiorari U.S. particularization made no material Therefore, S.Ct. under- testimony witnesses or could have been elementary review, principles produced granted. had the continuance been ruling court’s refusing granting or con particularized way And in which except tinuance will not be reversed prepared Solomon could better have party abuse of A seeking discretion. granted'. case if the continuance showing continuance must amake that the Avery Alabama, supra, Supreme reasonably just same is for a de Court said: the examination and “That termination of If the cause. the continu preparation per in the time sought purpose securing ance is *6 judge, adequate mitted had been witnesses, the attendance of it must be for every angle counsel exhaust is to its are, they testimony shown who what their indication, illuminated the absence of be, will it will be relevant under the trial, hearing o-n motion and for new competent, issues case and could done more had addi have probably witnesses can if be obtained granted.”2 tional been And time granted, is and continuance dili due Supreme recognized same case the Court gence has been used obtain to their attend speci “Since Constitution nowhere proposi ance for the trial as set. These any period fies which must intervene be elementary require tions so are to as required appointment tween the of counsel nothing general citation of but authorities. trial, fact, alone, standing that a Jurisprudence, pages See American denied, continuance has been does not .con -471, inclusive, especially 5, 9, Sections stitute a denial of the constitutional 23, 24, 28; Corpus Juris, 450-512, pages to assistance of counsel.”3 inclusive, especially 829, 831, 846, Sections By Flynn. respect In of this motion the 892, 921, ; pp. 925 22 Law C.J.S.Criminal exceptions following: bill of shows the 737-837, inclusive, especially §§ 491, 502, 513. “The Court. What about the others? “By your please, Mr. David. If Honor In the case showing instant my appearance I not entered for the during was made that the time between the Flynn defendant for the reason that I have September 21, 1939, arraignment on -yet employed. not been defendant trial, the date of the November Flynn me, I jail; sent for and went to the excusably Neufield’s counsel Solomon was engaged purpose me for the he limited prevented searching for witnesses or endeavoring get to bond reduced. otherwise preparing defense of the case. spoke me, At the time he to made, was showing identity No as to the the 8th of ago, week November-—a last proposed nature, witnesses or as to Wednesday- relevancy competency of their testi mony, they could “By be obtained if spoke or that Mr. He Tarver. to me granted. Wednesday. continuance these cir- page 452, page 446, 308 U.S. 60 S.Ct. 308 U.S. at 60 S.Ct. L.Ed. 377. 84 L.Ed. 377. down them come you Then let “The Court. not see “By I could But Mr. David. loose. just man turn the here. cannot We Thursday. until me spoke to “By you Mr. Tarver. But right. “Mr. That David. Wednesday. sji sjc Well, “By David. I came' Mr. grant to going I not Court. am “The directly jail went to office think I do continuance, because Attorney; Mr. Tarver District but sufficient. given are the reasons speak officially engaged, I could i}i ijc The next only two. for a minute or Honor, like- I Your should “Mr. David. day The conference we had a conference. man. exception in behalf of this to note an question of exclusively was limited ap- understand I have not entered You bond. talked some reduction of We pearance, speak and the I friend about that. he is point is that His friend the Court. your spoke “I Honor with a view of entitled, Amendment of the under Sixth us whether it was finding out Constitution- dis- you open court to before to come Well, he has- (interposing.) “The Court situation; indi- your Honor cuss the but weeks; you for three talking been your did me that Honor not think cated to you you say just for a has retained he you willing reduce bond at this would thing- certain Flynn. time, reported which I to defendant you mixing him “Mr. David. I think are get that purpose His he could that .if up reduced, with this Rubin. There get able out defendant would be bond here, you I are re- four of them prepare his think engage and to counsel and to whose very ferring complicated one the defendants case is a defense. This very name is Rubin. I understand. I do not know merits. much about the Very “The Court. well. compli- anything “The Court. Is there “Mr. All defendants have Tarver. robbery? question cated is a about It of here for months. two he did or did not rob someone. whether point is “Mr. David. that under understand; David. “Mr. but there Amendment he entitled to the Sixth here, complications are a lot selection, his own assistance of counsel of years Government has been at this seven op- and he should be afforded reasonable and more. portunity engage counsel—this case hav- “The Court. That some of because *7 quickly. He ing been set down rather penitentiary. these men been in the have opportunity go fully has had an to into true; “Mr. David. That is and the de- me, able been and has not he the case Flynn penitentiary, fendant was in the and or to have summoned his witnesses have to depositions parole, is out on and wants to see witnesses. taken, for witnesses his defense. purpose presenting “The Court. One of these men was out employing counsel, here talked about a well, Very sir. Court. “The days ago, week or I ten told him being re- This case is “Mr. Tarver. employ either to counsel ap- or I would exceptions have been and since ported; point counsel. your rulings, I should Honor’s taken appreciate you I “Mr. David. what have appear record, like the facts to be, said; I understand but rule to four were these defendants which are that Amendment, under that man the Sixth a Washington ago; two brought to months entitled to assistance of counsel engaged has been Mr. Solomon that his own selection. that means counsel of month, than be- Neufield for Mr. more many years the order has I that know my office at the time. he called at cause that if a man does not been this Court my at at Mullen called office Mr. P. John desire to em- have counsel and does not represented ago he and stated least a month one, appoint ploy Court will counsel for my called Flynn. Mr. David office is a situation him. here But .where he had em- said that ago and week Flynn selecting defendant desirous purpose by Flynn getting ployed for the counsel; to his he wants do that. He has bond. a reduction of York, he two brothers New tells me Only general- that and “Mr. David. cooperate they will with him if employed. ly opportunity confer. are afforded to names own selection to to assist him. understood New York. this man called about 5:30 that a man was an connected like to come down little continuance in essary investigation told him that the case was set brother, saying day afternoon, ernoon. When that he friend of the defendant could here. some witnesses to assist him this case— other room ? fendant near your exception. Flynn for a minute? brought before the Court and took seats stairs. to talk to the main, please. “This “A man was “Mr. David. Your “The Court. “Mr. David. “Mr. “The Court. Yes. “(Thereupon “The Court. “The Court. “The Court. “The Court. “(Following “Mr. say my opportunity brothers, him I inwas to was too short and the counsel come down He home last come defendant. David. could not David. Flynn, defendant with this case will take a short recess. the courthouse most of the aft- showed me a letter I it, addresses of one of whom would come down I said that he could reach me down here or had a short talk with the de- defendant. and long defendant a brief for trial trying andme May I Yes, I listen to May Very I got Bring trying Mr. í¡s v [*] [*] understand, get night. have had no long table.) confer tells he tells distance :¡: the notice [*] I was out sir. here unless the case so I talk to him in the Honor, David, confer with counsel. talk to the defendant If well. pause.) some back to ijt said that he was a [*] to reach me from distance —a friend [*] and make the he could not defendants were his own fault. me that prepare Flynn the circumstances his today. reach me you o’clock 7 About I shall be down- about this get me defendants lawyer operator witnesses. I should like ployed me. will want to talk his down, opportunity is so and would my from his He said you if get that he you brother yester- he has of his part, -among had office, given office short trial, quest during case, nec- have then he can help Ias said up. re- counsel defense, competently. David took weeks had time in him. 8th November. portunity above 8th of November. The bill of September you Solomon, counsel for I him? get the witnesses. some ceed until the senting him? note an way he knows how. time; less and will have to investigate vestigated tained counsel and I statement en to him want “The Court. “Mr. David. “The “The “Mr. David. “Mr. David. “The “The Court. “Mr. David. “Mr. David. “The Court. “Mr. David. “The “Mr. David. “The Court. “Now, your Honor, he can make that forced to trial this depositions stated, believe I *8 ago. represent Court. fot Court. Court. Court. and that do not mean for exception to representing Foley since say for ten or fifteen exceptions summer Rubin. an counsel, present the course David you, prepare, had been -counsel—I time comes. The record shows case; several weeks. You Well, Well, active, Very Well, you I No, I Very Well, all But No, sir; Well, You You he conducted the himself; him. understand. take on his own had I this were It and of sir. in the conduct of the I was sent I was sent for on the hobble well.” have not also shows that dur- morning, well; might acting case had 1939, if the Court shows Neufield, who, defense; this, mean you representing if he record. we the trial for the he has not em- but I have been exception; Are long delay. ought ample cooperation my selection, and of along Tedrow, we shall have to take minutes as such since if we cannot can do is to further that has not ob- office ishe you repre- represent but to be appoints leading, defense time to the best no Miller, -an on the three some spok- short help- talk- here, if he who pro- it' is op- re- in- taking depositions public hostility which David circumstances of and under forces, said might if the witness- military have to be taken close surveillance of es put could not be and were obtained. on trial within a few mo ments after the first counsel Flynn of the We think that in denial charged responsibility degree motion for the trial court a continuance began represent case holds them. The prejudicial This mo- committed no error. capital that “in a where the defend tion, upon guarantee of the founded counsel, employ. ant and is is unable to process compulsory Sixth Amendment incapable adequately his own making upon guarantee the same also ignorance, defense because of feeble-mind enjoy “shall Amendment that the accused ** * edness, illiteracy, like, duty or the it is the right Assistance- to have the not, court, requested of the whether defence,” emphasized of Counsel for his assign necessary req counsel for as a points appointment of David law; duty process uisite of due and that proper morning on the defend the case discharged by assignment is not at such op- gave when it was called for trial a time or such circumstances as to under Flynn portunity or for for conference with preclude giving of effective aid witnesses; Flynn obtaining preparation of the case.”4 In and trial his should have been allowed choose Thomas v. District of Columbia the de upon own is had counsel. Reliance John- Zerbst, 1938, fendants were in witnesses 58 S.Ct. effect forbidden son v. 304 U.S. Alabama, right argument denied the coun L.Ed. Powell U.S, sel. 53 S.Ct. District of Co- A.L.R. Thomas v. point as concerns So far lumbia, 1937, App.D.C. 90 F.2d 424. Flynn have been allowed choose should Zerbst, recognizing ap Johnson his own counsel: It was not made to vigor guarantee Sixth pear than the that at time other mo prosecutions, Amendment that in criminal Flynn ment of motion for continuance right enjoy “the ... accused shall application had made to be allowed to counsel,” assistance holds have the application counsel choose and that his represented by if an is not counsel accused appear denied. And it was not made to intelligently competently and has not ignorant right that he was of his to coun thereto, right waived his constitutional sel or that he was unable to secure coun judicial guarantee as a bar to will stand contrary appears sel. On valid points conviction. Powell v. Alabama right record he knew of his to coun guaranteed out that right to the assist counsel, sel and that able he was to secure ance of counsel opportuni includes a fair represented by since he was at one time ty to an accused to secure counsel of temporarily Mullen —at least had re —and own choice and to have effective special purpose. tained for a An ac David counsel, substantial aid of and also decides cused to counsel aware that the failure of trial court to make an counsel himself able to obtain cannot over appointment effective counsel denial is a an extended Sep time —in this case from process meaning due within tember until 15 fol November Fourteenth Amendment. Thomas v. Dis period lowing, approximately eight recognizes juris of Columbia for this trict any steps weeks —omit to take either to diction that under retaining the Sixth Amendment wards himself counsel for the process clause of proper the due Fifth trial or towards securing ap pointment by Amendment assistance of counsel the court then —at prop means effective assistance. But on moment of their commencement of trial — from, distinguishable complain cases erly facts that unless a these continuance *9 they granted may case and in instant are therefore not order that he select coun In controlling. Zerbst de sel will denied right he have been of Johnson had no counsel Flynn, fendants whatever at the right aware his choice. of to coun counsel, In Powell v. Alabama the defend trial. simply sel obtain and able to did ants, negroes, rape, capital right accused of a of choice of coun not exercise Alabama, proper. in state of In were sel for the trial these circum offense youthful, judge by ignor record be the trial was confronted with shown stances illiterate; they delaying trial, were tried under alternatives of of ant page 71, 287 U.S. at 84 A.L.R. 527. 53 S.Ct. equally respect Flynn appropriate new trial in proceeding so concerned as was far Flynn counsel, of counsel. his dis- motion. appointing without or It abused cannot be said he it is In the defendants’ brief by adopting cretion alternative. the last ap suggested that the should have court arraign pointed Flynn on counsel for point that So far as concerns apparently ar ment. This in aid of the is appointment defend the of David to gument adequate not that’there was proper only morn was made on the case prepare Flynn’s for David defense—that ing for trial: when the was called case Flynn ought at an had counsel to have judge properly The trial could conclude as No was in earlier time. error terms something that David the merits knew of respect signed omission although been retained the case he had Flynn appoint on the court to counsel for special purpose, for in David’s a because arraignment. inconsist contention do not know above—“I statement set out mainly on— proposition with relied ent very im much about the merits”—David Flynn to se should have been allowed plied something. But assum that he knew lawyer. All that record lect his own Flynn’s had David had favor that stipula arraignment, as corrected Flynn opportunity no with for conference Flynn court, filed shows tion in this preparation the defense or to deter bear appeared propria persona. We witnesses, still, in all mine whom call Supreme Court mind statement of we can of the circumstances an ac v. Zerbst that: “While Johnson say not was error. prejudicial there counsel, may waive the cused above, Da As shows that stated the record proper waiver should whether there Flynn competent and vid’s defense court, clearly the trial determined be it would throughout the trial he had shows also that appropriate fitting Solomon, who been assistance appear upon record.” determination to counsel for since the time of Neufield page (304 S.Ct. U.S. at Tedrow, arraignment, and of who had been con been no 1461) But there has L.Ed. Foley during since sometime counsel for in this case that whatever tention waiver preceding the lawyers trial. two summer These the ar the time of counsel at ample acquaint had had time to compe intelligent and raignment was not clients, through themselves their own who do to be And not understand tent. we Flynn, jointly charged and with were tried presume that the law that we must surrounding the with the circumstances duty the ar perform its did court not possible crime, and with items evidence raignment. Also, and witnesses defense. available II stated, David had assistance above Miller, throughout counsel for the trial The motion compulsory Neufield for Further, Flynn’s motion Rubin. Spencer process against Waldron. The bill trial, particularization new no there exceptions shows following: any way in which his have defense could “Mr. I Solomon. was advised a few presented adequately been tinuance more had a con ago moments years ago that six or seven granted lawyer another Waldron, defendant the name of I think days selected. the course of the two said, pleaded guilty to this offense and occupied which the trial 15 and —November by your sentenced Honor to fifteen during period 16—and between the years. filing close of the trial and the mo Spencer Waldron, “Mr. Tarver. who trial, tion for new on November years was sentenced to five in each of the opportunity have been there must vid Da cases. Flynn confer concerning the case and concerning possible as whole I “Mr. Solomon. do know where the witnesses; yet favorable in the motion for defendant is now. new mention was made testi “Mr. He Tarver. is in Alcatraz.

mony available but obtainable because going your refusal “Mr. Solomon. continuance be to ask lawyer My to bring says some other Honor might cause David here. client than develop any- been better not know able it. does him and never had thing do with it. *10 quotations Avery Alabama, The from v. supra, here, the “The you set forth conclusion Court. If you at of our want men application seasonably. discussion above of Neufield motion for want the made

385 sary Well, guard guards. it that “Mr. not know But think Solomon. I did we even under the issuance morning. until this this circumstance discretionary,- writ that understand; may you I “The Court. guarantee is not Sixth Amendment find something during else the trial. require production so absolute as to motion is overruled. appli- despite a witness an unseasonable May excep- “Mr. I have an Solomon. cation for the writ. For due adminis- tion? justice tration must be a limit there May “Mr. I that his client Tarver. state delay; and if the the writ for 1934, letter knew it in I have a because production jailed aof witness were ab- time, stating defendant at that solute in the sense writ must be that. issued and executed is whenever demand Well, “Mr. Solomon. the Government made, power it would within of an on, bring can and we cannot. compel by making accused continuance “The Court. I understand. permis- a late think demand. We it was it, judge sible for trial to take “Mr. Solomon. Your Honor will not him, what the record shows was said to an order for him? issue Neufield had known since 1934 No; “The I Court. will not. sentence; plea Waldron’s cer- guilty and May excep- “Mr.. Solomon. I have an tainly the judge was bound to disbe- tion? lieve the undenied of the District statement Attorney effect; judge to that knew No; “The Court. understand also from record him that before Neu- Alcatraz.” representation Solomon, field had .had support of this motion the Sep- arraignment since guarantee in the Sixth Amendment of com 21, tember 1939. Therefore the trial pulsory process for obtaining witnesses judge properly regarded application again upon. accused’s favor is relied process against Waldron as unseasonable. formally Although designated as such An accused cannot omit to inform counsel, one, effect, this motion was lawyer during an period extended this—in corpus the issuance writ of habeas case approximately eight weeks —before testificandum, ad the common law writ for trial possible existence of material production of witnesses who con are then witness a'nd successfully charge jail fined in beyond who thus judge trial with an abuse discretion for ordinary subpoena. reach of the The is refusing a production demand for the suance a writ such was at common the witness not made until the moment the discretionary. Wigmore, law Evidence case is called. While the usual course ed., 110; (3d Greenleaf, 1940) Evidence important it would seem present to have ed., 473; Thaw, Cir., (16th 1899) In re participant the trial a confessed in the Ann.Cas.1915D, 166 F. And charged, crime say we can not that under in the Federal has held courts that the circumstances instant case the compulsory process all issuance of judge abused his discretion in denying discretionary production where application production. Waldron’s expense. sought at witness is Government Goldsby States, 1895, United U.S. v. Ill 343; Crumpton S.Ct. 40 L.Ed. The motion for a directed verdict. This States, 1891, 1 United U.S. 1motion, made at the close of all evi- 958; S.Ct. States, Gibson v. United dence, argued far it is raised, on the so Cir., 1931, 53 F.2d Austin appeal, points. first two asserts failure Cir., States, 19 F.2d United prove evidence to with sufficient States, Cir., 1925, Dupuis v. United 5 particularity money taken was of filed in Although F.2d 231. Neufield has indictment; referred in the character pauperis, appeal affidavit in forma second, proof insufficient to proceedings since the record of below charge in the indictment sustain production does not show possession taken from the Spencer be at Government Waldron was to Elgin. of the teller expense make the somewhat strain we will title assumption ed defendant’s favor that First. Section D.C.Code (1929), provides expected pay (1901), the cost of Stat. 1338 he was able transportation of Waldron neces follows: *11 386 the cases every find none of in- We “Description Money. —In persuasive reason cited of for the it is value dictment, which except forgery, in any that decided under such stat ás an averment

necessary to make think that it ute as Section 362. we notes, States And United money bill or or hank upon 362 the face of Section cur- obvious notes, fractional Treasury postal and notes, purpose the Govern is- that its was relieve bills, rency, bonds, or or other par necessity from of detailed to ment authority intended by lawful sued ticularization, allegations in either be suf- money, shall pass it and circulate as or. notes, money bills, proof, of taken. Therefore money, describe such ficient to was not for the money, with- Government currency, simply as or bonds note, coin, this case either describe detail any particular specifying out num proof be either the indictment or the bond; shall bill, allegation or and such coins, bills, notes, currency has ber of items by proof that the accused sustained coin, each or or or bonds or the face value of taken amount or embezzled stolen bond, or al- of issue the numbers thereof note, currency, or the date or bill, any such special identifying other features. species of or though particular amount note, bill, currency, coin, or bond such charged the The indictment proved.” taking with “a certain sum of defendants argue under thus: While The defendants wit, money, twenty- nine thousand not re this statute the Government was money, of the value of nine one dollars more quired allege in the indictment dollars, twenty-one thousand and “money,” taking of without than the mere money property Washington coins, notes, bills, particular specifying any Bank, Savings body corpo Mechanics bonds, re currency, would have been or teller, Elgin, . rate . . .” after statute, of this quired in the absence holdup, describing the testified: “Later I duty from the not relieved Government is money missing. ascertained was We im- was some was taken proving,that what mediately my cages. settled the I settled bills, currency or bonds coins, notes, coin or $3,302 missing. Approxi- own and found authority United issued lawful mately $9,030 missing throughout was country, or from some other or States 1932, 10, Again bank.” he said: “On June was taken proving that what duty of my money after counted I found out that the case value; the. evidence in_ my $3,302 missing from cash was duty. The wit satisfying this short fell $9,000 drawer . . . . A total of was merely as taken what was described nesses missing again: bank.” And support of their “money” In “dollars.” or my $3,304.23 “The deficit in drawer was follow the defendants cite contention shape Davis, . . . . of cash.” Hardyman, States v. United ing cases: cashier, testified: “After the the assistant 113; 176, 1839, Pet. 13 S.U. up the bank we checked occurrence at Klintock, 1820, 5 U. S. v. States United missing, was ascertained how much 55; 144, Alderman v. L.Ed. 5 Wheat. $9,030.36, belonged to the which was 737; 375, Keat State, 102 So. 88 Fla. 1925, Sanderson, Richard S. at the bank.” who 480, N.E. 1896, Ill. 43 160 People, v. ing robbery bookkeeper 193, 1877, State, 60 Ind. 724; v. Hamilton bank, auxiliary teller of the testified 1888, 653; Segermond, v. Am.Rep. State 28 I checked “After the occurrence follows: 169; Am.St.Rep. 370, 107, P. 40 Kan. $1,260 my and found that accounts 651; 1871, State, 45 Miss. State v. Merrill drawer, my I believe or missing from some- 168, 321; Mc P. Neilon, 1903, 43 Or. v. $1,260.90.” show- like The evidence thing 255, State, 1915, Tex.Cr.R. Caskey v. robbery the time that at ed also State, 1909, 56 Tex. 338; Early v. 174 S.W. operating concern in Dis- bank State, 1036; Snelling v. 61, 118 S.W. Cr.R. juryA is entitled to trict of Columbia. 610; Per 123 S.W. 1909, 57 Tex.Cr.R. inferences from the facts reasonable draw State, 42 Tex.Cr.R. S.W. ry language v. take at its ordi- proved and to State, Tex.App. 400; meaning. knowing v. In this Otero nary State, 1889, 1081; operat- bank Lewis v. evidence 17 S.W. 736; year 1932, Lavarre District Tex.App. S.W. bank reasonably 1877, Tex.App. jury State infer State, could were not with drawers” filled “cash 67 P. tellers’ Phillips, 27 Wash. seashells, symbols historic Robison, 1930, wampum or 109 W.Va. State v. barter; objects exchange, S.E. *12 money,” jury by him to night take handled was could the words returned at “cash,” separate his compartment. Each tell- “dollars” mean what and to vault ordinarily responsible money, er and in business was mean the context of for his own currency the money or teller money in issued in the drawer of each District — pass only to could could authority intended be handled him. Davis lawful and - such, money adjust money according needs and as and to mean to the circulate “money” bank, money having To the tellers. All the in the value. effect money drawer, of the parlance including Elgin’s belonged in that in common means Gabriel, 1938, to State v. the bank. The in indictment charge United States see: Guyon was that the and off Mo. S.W.2d defendants took “from State, 1921, person, immediate, 230 S.W. 89 Tex.Cr.R. and from the actual State, possession . Elgin, Colter v. Tex.Cr.R. and then People Fiereto, being, wit, 303 Ill. money, there to S.W. a certain sum twenty-one term nine thousand N.E. holds and in dollars money, “money” imports itself value. of nine thousand and value twenty-one dollars, money prop- of the and Particularizing their second Second. erty Washington of the Savings Mechanics point, urge the defendants that the motion Bank, body corporate . a . ..” for directed verdict should have been a granted: . “Because the evidence point made the defendants is not money in disclosed that the referred to the that money robbers did not take the time indictment was of the rob- drawer, that, [at Elgin’s from but under the possession in bery] legal ... respect facts above forth in of the set Bank, body corporate, a or . . . practice in the and the bank duties Davis, Manager in . and As- tellers, money in Elgin’s drawer . sistant Cashier ... not, law, possession a in as matter his bank, . . . Davis branch Davis, but was in the bank or of charge ... in all of as- charge the officer in of the branch. The bank”; . . . sets of the branch authority posi defendants their cite proof tending “Because there is failure of a except States, 1936, tion White v. United allegation to sustain the [that] App.D.C. F.2d Cor steal, . carry the defendants did take and pus 834 says: The text of the latter Juris away money . . . from and off servant, clerk, a “Since employee or of a person and from the immediate actual grade, merely minor who has the care of possession . Elgin”; and “Be- employer’s goods, his performs or who to go cause the evidence is insufficient to respect in some service to them under his Elgin pos- . . in jury . employer’s supervision, immediate is usual money session of the assets ly merely held to the custodian Bank, body corporate, . . . the goods, ownership must be laid of the offense commission employer and not in him. But em 9» ployee, higher grade, of a who has the care, management, entire and control of According to the evidence in case: chattels to employer, intrusted receiving teller Elgin paying was a manager such as the of a ranch or herd robbery. $3,- time of the bank at the cattle, bank, the cashier of a agent 304.23 of the total amount taken was re- shop charge of a and stock goods drawer, moved his cash the remainder sale, a real agent charge estate of a cash drawers of the other tellers. house, agent or an for the goods, sale of or Davis, It was the custom at the bank for who, agent employer, of his is authorized charge assistant cashier officer goods him, consigned receive or branch, open the vault in morn- moneys him, owing collect or who one Elgin ing. had the combination agent representative is the of a com it, open and could but vault respect mon carrier in to goods delivered to part teller, of his duties to so. Each do transportation, the carrier such as morning, go as he arrived would agent yardmaster railroad, station or vault take from cash box it his place money stagecoach, or a driver of usually it contained in a held possessory rights drawer under the such counter. Each teller had in the chat separate compartments vault, justifies tels laying ownership kept locked, him, were and the each teller especially is this the case when is of Therefore United States cannot White v. corporation which employer un- no aid to the defendants. statute when except through agents, act its *13 materially der decided is chat- was the employer of had possession never the applicable from in This text different the one independently agent.” tel robbery as which, denouncing instant in question the has with statement to do crime, by or provides: “Whoever force in an in- laid ownership be must whom by violence, against whether resistance or have to not larceny. does dictment It for snatching, or stealthy sudden or seizure in or lar- possession question the do with by fear, per- putting in robbery shall take the do with ceny, and not to does have from son an- actual possession in or immediate no the force at all. It is therefore value, anything guilty other of rob- States v. United present case. In White bery by (Italics supplied) . . . force .” White that charged the indictment away from carried stole violence “pos We think that the word $1,- M. Porte Frank La person of one the this used the session” in statute not in Riggs money belonging the to 217.05 in sense, which, as strict larcenous a result counts it Bank. In several National custody may although in a or control be belonged the bank money stated that the agent, possession legal servant or is said care, custody, in con- that and trol, it was the Larceny an in the master. offense be The stat- possession bank. against possession; robbery, against drawn the indictment was under which ute person. robbery local in The statute “Whoever, and vio- provided: force our “possession” view word in a uses the feloniously lence, fear, in putting or sense, colloquial meaning nothing more take, attempts takes, feloniously or custody persuasive than or control. as See any prop- presence of another person or State, topic on this Barfield 137 v. money erty thing or other of value or 129 Tex.Cr.R. S.W.2d 123 A.L.R. care, custody, to, con- in belonging or 1093, 1099; People, Brooks v. The of, any trol, possession management, or 436, Am.Rep. 398; 49 Rasberry N.Y. v. $5,000 fined more than shall bank be State, 1909, 4 Okl.Cr. 103 P. imprisoned . Stat. 783 . ..” State, 1922, Reese Tex.Cr.R. (a). The evi- 588b (1934) 12 U.S.C.A. § proof taking S.W. 619. The showed a employed Porte that La dence showed immediate, (cid:127)from possession, actual Riggs Bank an assistant term, this Elgin, sense and that messenger. His duties mailroom and as charged was, the indictment. There money Office cash took him to Post therefore, no variance. Station to collect orders and to the Union placed money he deposits, the from which IV he He was held bag which carried. in a request The a view. up out of the Union Station came defendants contend that the court erred bag contents was taken with its refusing permit the jury to view convicted, appeal White was him. robbery building scene in which —the' was that it was principal contention the bank was vicinity located and the money alleged to proven that the have particularly because testi thereof — property the Riggs been stolen mony of the witness Mrs. Sarah E. Ran This court held that National Bank. dolph that she parked was seated in a au It could not sustained. said: contention be in front tomobile bank and through testimony . “The disclosed the window of same saw robbery. employed by agent La Porte was urged upon It was the trial court that the bank, money and receive the collect jury given opportunity should be bank; property of that at as the verify the witness’ she statements robbery money was in time of through could see window. custody possession, control, and La Porte’s facts, capacity granting for the bank. These or refusal of a motion for upon a together the assault committed view is within the discretion of the trial Porte, clearly judge only bring the case within the and reviewable La abuse. is, States, . Massenberg Cir., 1927, . It óf terms Act .. United course, plain ed., while Wigmore, F.2d (3d Evidence care, custody, 1940) messenger Photographs and control 277. introduced in evi- was, contemplation law, pictured in the cus- dence in the case both the outside care, tody, and control of bank.” and inside of these the bank. With in evi- may page App.D.C. page judge 85 F.2d well thought at dence no "unnecessary. C.A. There is title section Rev.Stat. quite a view § (1872), providing that: “No indictment discretion. showing an abuse of insufficient, . nor shall be deemed V trial, proceed judgment, shall or other Un- judgment. thereon reason of affected The motion arrest imperfection three raised defect or in matter of form the defendants der motion only, first, prejudice fails which shall points: indictment not tend to the relationship, any, Elgin, By possibility if could show what defendant.” charged person money was it have judge the trial from whom been held *14 taken, prejudiced bank the sustained to the defendants were the money; complained formal owner the defects averred to be the second, of. Also such charge 28, the indictment fails defects within that U.S.C.A. title section 391, by Elgin, (1789), resistance was 726 directly that Rev.Stat. 36 1163 the Stat. § put fear, the (1911), in or that 40 Elgin providing or that Stat. 1181 (1919), stealthy snatching any and that: hearing appeal sudden and seizure “On the Elgin, criminal, act of force . in any was from or that civil or upon Elgin, or the give judgment and violence was committed court shall after assaulted, Elgin that that indict- examination of the record before the entire court, errors, allege directly regard ment essential fails without technical third, defects, robbery; exceptions elements that in- not which do affect rights parties.” dictment bad because contains elements the is it substantial We robbery say, within the terms of cannot not statute. after an examination of .record, entire that the defendants’ sub theory First. The of the defend rights stantial were in manner affected point apparently is ants under first by the formal they defects attack. The it charge that in in the charged indirectly matter to have been Elgin dictment that was the servant of directly was, rather alleged than appear bank so that it would Ellenborough words of Lord v. Jackson possession averments that was lawful. Pesked, 1813, 234, 1 M. & S. stated point supportable. is The not Under the sufficiently general comprehend terms allegation of the indictment that the de it in fair and reasonable And intendment.” possession Elgin fendants took from States, 1896, see Rosen v. United 161 U.S. bank, money property of the it be will 29, 606; 16 S.Ct. 40 1 L.Ed. presumed Elgin’s possession of the Chitty, op. supra, cit. 845. The at defend money property lawful; that is to ants adequately were informed in say, what, by intendment, is fair dictment they essentials of what States, charges. v. indictment Vane United charged were with. Cir., 28; State, Danzey F. v. Third. The defendants assert 697; Ala. People 28 So. v. local denouncing robbery statute as a crime Dean, 1924, Cal.App. 602, 943; 226 P. providing punishment, for its does not State, Welch Ind. 143 N.E. express itself all of the elements 354. do not the foregoing We rule that of robbery crime at the common law since taking possession one whose un is requirement it omits property that the be point lawful would not crime. That belong shall someone other than the rob- presented. is not requirement ber property that the Second. shall be And Examination of stolen. the defendants con- indictment, permissible which is out in tend that it not set haec verba to draw an opinion, the outset of this indictment in at terms broader shows that the than stat- complain say defects which the ute. defendants Therefore allega- point under their second tions of the indictment are defects of the instant case form, complaint not of substance. from Elgin taken was the against property bank, indirect averments. it Such defects that was stol- en, disregarded, come within the be rule of must intendment —that a in con- effect, sequence verdict will aid the indictment “in the defective charges statement of a cause, though greater grand larceny, the statement of crime than de Chitty, support . . is insufficient to Pleading cause. . (16th fective convic- Hence, ed., robbery.” 1876) Keigwin, say Amer. Cases on tion of .defend- ants, Procedure 511 the conviction of (1939). robbery Criminal cannot Such de upheld. fects rendered are also innocuous U.S. bery comprehend tak rob that it so would proposition that For the ing by snatch stealthy sudden or seizure or all of bery not enumerate statute does ; obviously meant robbery Congress com but also at crime elements robbery robbery crime, it rely upon make United to law, defendants mon robbery Parker, Sup.Ct.D.C., the usual common law meant Ernest States v. except expanded. of the term sense Wash.L.Rep. 6. that .case it law circumstances Staf is settled that such court, through Mr. speaking Justice statute, necessary, permissible, to robbery therefore ford, local said that now, charge the overlap “did in order to phrased as it is statute then which was Carll, States v. a full definition crime. United to state undertake Moens United referred, en but to U.S. crime to which it robbery States, 1920, App.D.C. 267 F. definition of large somewhat indictment for v. Carll an respect to the manner In United States law common nothing forged obligation passing the United legislature said taking. The property allege that the defendant ownership States omitted to regard to the to' be false. was knew instrument uttered taken, intent nor the *15 18 statute, page (1878), U. Wash.L.Rep. at The Rev.Stat. . . .” 35 § taken . “every 265, provided: person supplied case S.C.A. in that § But indictment the defraud, utters, passes, averments, who, with intent to and as'thus in its these elements falsely made, sustained, forged, publishes, the or sells indictment drawn the point counterfeited, . being obligation . . case or on in altered actually ruled the States, necessary punished of United shall be the word the to use that it was not holding . .(cid:127) . .” etc. In the indictment de indictment. The in the “felonious” bad, Court, speáking proposi Supreme through the only the case fendants cite the Gray, enu Mr. said: local statute omits tion that the Justice robbery. all elements of merate of the upon statute, is “In it not indictment proposition the miss They that attack the in the to set forth the offence sufficient supplied by the indict may ing elements be statute, words of the unless those words of position nothing They for their cite ment. themselves, fully, directly, expressly, penal announcing except the rule cases any uncertainty ambiguity, without or set strictly United be construed. statutes must necessary forth all the elements to consti Resnick, 1936, 207, 57 299 U.S. v. States punished; tute the offence to be intended 127; v. 126, 81 Fasulo United L.Ed. S.Ct. question, fact that in and the the statute States, U.S. S.Ct. law, light in of the common read t'he 443; Wiltberger, v. United States L.Ed. matter, like enables of other statutes on the 37; 1820, 5 Res U.S. Wheat. legisla the intent of the court to infer the Weidle, 2 Dall. publica Pa. v. ture, dispense necessity does not with the cas last three of these L.Ed. 301. But the indictment all the of the facts alleging although recognize that there themselves es bring case within that in to be construed penal laws are is rule that Cruikshank, United States 92 U.S. tent. v. is rule strictly, there also a nevertheless 588]; United States Sim L.Ed. [23 strictly construed so they are not to be mons, 819]; L.Ed. Com 96 U.S. [24 obvious intent of as to defeat 215; Clifford, 8 (Mass.) Cush. monwealth legislature. Bean, [Cush., Mass.,] Commonwealth v. Bean, Gray Commonwealth v. position de taken Filburn, (Mass.), Commonwealth v. statutory is not law. Where fendants 119 Mass. 297. imports less than the framers language language “The of the statute on which which intend —in case legislation this indictment founded includes is the case must be determined the enactment effect every who, person sense, intent to de- but as altogether the literal not fraud, any forged obligation utters accepted principles interpre well may States. But the offence allege United at which indictment must and tation —an similar implies is aimed is to the language it common-law all of facts uttering forged or offence of counterfeit de requisite to constitute crime case, that, op. knowledge bill. In this supra, cit. Keigwin, 402-3. nounced. forged instrument purpose Congress that the counter- obvious crime; make out the robbery feited essential statute in the instant enacting defraud, uttering, with intent to was, and an by Mr. as said Stafford case Justice counterfeit, Parker, in fact but sup- instrument v. Ernest to ex in United States genuine, to be posed the defendant law definition of rob- pand common statute, though prejudiced jury diet within of the believed the words meaning charge and ob- there was would not within its foundation for be prejudice. ject.” 612-613, 26 L.Ed. U.S. at 1135] [105 course, may, was,proper plain in the instant A Hence it error case, noticed, especially charge in the in a criminal case the Government be But, fully cog El though assigned. indictment that taken even and, protect gin property duty bank that nizant courts was the cases, stolen, notwithstanding rights it the fact criminal defendants express el robbery majority does nevertheless of the view statute robbery ements common-law under the circumstances of this than quite other property belong to someone would unwarranted for the court shall it shall be stolen. on its reverse robber and that own motion to because judge remarks of trial state VI Attorney the col ments of the District —in that some appears It the record loquy question. part colloquy counsel between points We find none of defendants’ requested con- respect court urged appeal meritorious. con- top- (discussed tinuance of under the case sequence judgment of conviction af- jury I) place presence ic took firmed. panel, although actual selection of before particular try jury sworn to which was MILLER, Associate Justice. minority expressed A view is case. majority I opinion except concur irascibility, judge exhibited points as to I and As II. to them dissent. *16 impatience, resentment, the and that and Supreme repeatedly The has warned Court mood; Attorney entered into this District against arbitrary in action the trial court that the manner position the is taken deprives persons which accused of due Dis- judge the and of the and comments of process important law.1 One the prejudiced Attorney trict so must trial, guarantees, provided fair as in jury to the verdict. as a as vitiate whole Amendment, per Sixth that an accused majority impropriety in the The see no enjoy right son compul shall “to have Attorney. He made conduct of the District sory process obtaining for witnesses in only such statements as were to right This a his favor.” includes reason representation his Government procure witnesses; able time which in to against apparently was an what believed he and it has- been held that refusal attempt delay. to secure unwarranted a grant court to that continuance cer so witnesses could be tain summoned abruptness record does show on the of discretion and denial of the abuse part of judge perhaps the trial im- even — right guaranteed Constitution.2 patience. may This have been occasioned Appellant Neufield, a belief motions in behalf continu- whose re- quest delay ance only. continuance, were for made for majority had been justify abruptness impatience do not in Sing Sing incarcerated on Prison. Seven part years elapsed one-half judge. a trial during But had record which in he had any friends, this case is been out of devoid touch with contention acquaintances, any lawyers four representing the rest world. Approximately any defendants at trial or two months before three the trial representing appeal in court, them lower had he been released on judge conduct of Eight days bail. the District before trial he received —or Attorney prejudiced jury and thus notice date. He his coun- — spent vitiated the verdict. charge days There no sel witnesses, four searching for lawyers in repre- record that process with the aid of pri- servers and a senting- the defendants were experi- vate They far, detective. had failed so competent, enced and it is not as- to be but assured the court within two weeks such counsel sumed would ready have omit- could find them and be for trial. vigorous steps prompt protect ted arbitrarily The lower court refused the re- exposure against defendants quest. ver- No occasion for such appears haste Zerbst, States, Johnson v. U.S. Cir., 58 S. Paoni United 281 F. 82 L.Ed. Ct. Powell v. Ala bama, 287 U.S. S.Ct. 158, 84 A.L.R. 527. expense neither Government, sev court himself.4 The the record. The facility as to every inquired, permit showing, nor it had did years, en one-half witnesses; ex whether bear such its accused could keeping touch he pense. fact none. But the accused had spent years penitentiary in a those requested the If the order had issued trial, only before came months out two produced desired witness could have initia stripped, prison discipline, days. that he within four Counsel stated more might tive have made availability of just been advised of interests, does his own protecting alert witness; material Waldron was a in deprive presumption of him of the questioned; that witness he was cannot be by the right guaranteed nocence or accused without such-an unavailable any show there Constitution.3 Neither was apparent rigid because of the order is He had upon part. bad faith discipline prison adminis- of the federal extradition; had asked for waived he prisoners Al- incarcerated at tration over catraz, cooperat apparently previous stay; it is dif- circumstances Under the every proper ing with Government respect applica- ficult to see what the Government way. It seem -that would The fact that tion unseasonable. insure to him active to should have been Government witness was at Alcatraz—in rights, enjoyment of his constitutional full custody argue in favor seem —would preserve them for and the court zealous application against rather than it. one request was a reasonable His him. important guarantee of the A second in trial certainly court not unusual Sixth is that accused shall Amendment action, with others practice. together This enjoy right the assistance to have constituted, discussed, my hereafter involving counsel for his defense cases opinion, discretion. an abuse of capital off noncapital offenses well as refusal regard the court’s anything it means With enses.5 If this means Waldron, prepared6 witness intelligent, for the assista issue an order and effective witnesses Although robbery capital to obtain constitutional not a the makes nce.7 appli court, upon offense, duty it is nevertheless one of the most character, equal such wit prisoner, send for serious in rule is cation *17 ap they may ly applicable.

nesses, had within The record shows that wherever be court, pellant Flynn jail up was still in to the at the jurisdiction of the the expense He, too, Government, of the trial. had in prisoner been the of .if penitentiary, parole, had been released on to poor and unable bear proves he is prosecution, deprived rights 52, Alabama, 45, 3 of be these 287 v. U.S. Powell by implication. 158, are fundamental These 84 A.L.R. 77 L.Ed. 53 S.Ct. rights safeguard duty should which the courts the court of “It was 527: ** * care with meticulous and award to the ac no were denied to see requested cused, not, necessary whether or unless fair trial.” incident by showing Kenneally, 4 him in a waived manner his 26 Fed. States v. United express intelligent 15,522. consent.” 760, No. Cas. Ky. Commonwealth, D.C.N.D.Ga., Aderhold, Johnston v. v. Bridwell 615, 622, 623, F.Supp. S.W.2d 1038: aff’d. Bridwell request Cir., “A for a of a trial is Zerbst, continuance rev’d on 92 F.2d v. Cir., grounds, but a means to an The end is a fair be end. 97 F.2d other by Zerbst, trial. The rules which such motion is decision in Johnson cause secondary be to measured but means. 58 S.Ct. 304 U.S. though application, apparently guar If their observed that “It will be 1461: proper time, right anty to seems to assistance of counsel have of the unjust, result, process obtaining compulsory to wit or have had disastrous ought be on the error to corrected the mo- in same clause contained is nesses expressed substantially tion for the new trial. What more lan should in the same profoundly guaranty right guage to concern the courts review as right guarantees jury. by is whether end was achieved— The amendment trial justice any in right there is the verdict. criminal whether to accused ‘in this appears not, it there is If prosecution.’ is no limitation court There rights to the is should be sensitive situation where accused cases these to permit urged capital charged to be sacrificed on offense, as not the accused with a literally legal formalism, appears by altar of too respondent, and no reason humanity why applied.” morals, logic, ac Columbia, danger deprivation cused, Thomas District his App.D.C. 179, should, liberty, 90 F.2d criminal life or by counsel —to unrepresented entirely again jail, on and was account mitigate what- reply to statement or to this present accusation. jury, upon the may had ever effect it have irascibili Even the record8 reveals cold sugges- as, example, covert from the upon the impatience ty, and resentment investigat- had alleged Mullen tion that the Assist part judge, and that Flynn’s Atten- defense. ed abandoned fully into his Attorney District entered ant called, also, the statement tion to should be completely to But record fails mood. Attorney: made District Assistant Every request reveal reason therefor. “May client I state his [Neufield] one; the made counsel was reasonable it Alca- knew incarceration at [Waldron’s continuance;9 ample showing was for a I have a letter from because traz] the defendant at perseverance the face of counsel in time, that.” stating commendable; judicial arbitrariness was This evi- statement inadmissible in and, my con opinion, action court’s any purpose, dence for fact in view As an abuse of discretion. stituted appellant testify did in his own hardly Supreme has said: “It Court Although it behalf. was made out that, say counsel to hearing jury, upon its effect' conceded, be being should af defendant judge intended, was, apparently — opportunity a fair counsel forded to secure acquaintance show between the accused and of his own choice.”10 pleaded guilty man to the'same who judge We have said that: “The trial court’s curt offense —was reflected in the impartial, be so trial of should in the a responses request counsel’s for an order case, criminal no act witness, word or produce which followed may per jury detect his able to immediately statement volunteered guilt sonal as to or inno Attorney: convictions District Assistant cence of accused.”11 Several state Honor “Mr. Solomon. Your will judge, present ments of the trial in the him? issue order for some of were made No; “The I will not. Court. presence jury, were, opinion, my May excep- “Mr. I have an Solomon. clearly prejudicial, hostility evidencing tion? counsel; accused and their and seri No; “The Court. understand ously prejudice calculated minds in Alcatraz.” jurors against example, them. For perhaps single “While there in comment: “That is because some these involving prejudicial stance error so as to penitentiary,” men been in the reversal, that, impar warrant we certainly are convinced suggest not calculated to whole, Moreover, rights considered as a de tiality. atmosphere par prejudiced fendant thereby were so tiality hostility contributed *18 impartial deprive of that fair Attorney;12 appar the Assistant District law of the the Constitution ently unrebuked In this court. re every citizen accused land accords gard attention called should be com crime.”13 the commission my ment: “Mr. P. Mullen called at John my opinion judgment should be ago least and stated office at a month case remanded new for a represented Flynn.” opportunity No reversed Flynn who, remembered, trial. given it will be — 8 Avery Alabama, 444, 447, The Constitution’s assistance counsel. 308 U.S. guarantee 321, 322, of counsel cannot of assistance 60 S.Ct. L.Ed. 377: “But appointment.” mere formal denial be satisfied where constitutional asserted, counsel its to assistance of Alabama, 287 U.S. Powell v. peculiar demands that we sacredness 55, 58, 77 84 A.L.R. L.Ed. S.Ct. scrupulously review the record.” 527. 9 Avery Alabama, 444, 446, 308 U.S. States, Egan App.D.C. v. United 321, 322, 84 60 S.Ct. L.Ed. 377: “But 384, 397, 287 F. 971. opportunity appointed denial of Berger States, v. United 295 U. See confer, the ac- counsel consult with 78, 88, L.Ed. 55 S.Ct. S. prepare defense, cused could States, Cir., Allen 115 F. v. United appointment into convert of counsel 3, 9. nothing more a formal sham than App.D.C, Egan States, compliance v. United the Constitution’s re- given quirement 287 F. that an accused