300 F. 794 | 8th Cir. | 1924
Isadore Randazzo and Tony Evola, herein plaintiffs in error, were convicted, upon a trial on an indictment in two counts, which charged them with violating the provisions of section 197 of the Penal Code (Comp. St. § 10367), for that they assaulted with intent to rob one Ballard Todd of certain mail bags and mail matter, then and there in his lawful charge, control, and custody, and by the second count, for that they perpetrated such robbery, by putting the life of such custodian in jeopardy, by the use of dangerous weapons. To reverse this conviction they bring the case here by this writ of • error.
The court fixed the punishment of each of the defendants at 10 years’ imprisonment in the penitentiary on the first count, and 25 years on the second count, sentences to run concurrently. In the light of the latter fact, some four assignments of error, bottomed upon the alleged illegality of a conviction upon both counts, under the evidence offered, and the refusal of the court to require the government to elect on which count it would proceed, fall out of the case. Section 197 of the Penal Code denounces, as crimes, both of the offenses of which defendants were convicted. If, because there was here present, among the facts in evidence, a showing that all of the legal elements in count 1, were also included in count 2, this could have constituted error, at best, as to one count alone, and then only in a case wherein separate punishments were assessed, and such punishments made to run consecutively and not concurrently, as here. Stewart v. United States (C. C. A.) 300 Fed. 769, decided June 12, 1924.
It is contended that there was error, as against defendant Evola, in the admission of certain evidence which tended to prove the guilt of Randazzo, but which had no reference to said Evola, and neither tended to prove his guilt or demonstrate his innocence. There is no.
The most that defendant Evola could have asked for, or was entitled to, was a charge that alleged confessions or admissions, made by Randazzo, did not bind Evola, and did not tend to prove his guilt. This Evola did not request, nor did he ever at any time, nor in any way, call the matter to the attention of the trial court. As forecast, the situation might have been different, had the alleged confessions of Randazzo, made after the commission of the crime, connected Evola with the commission thereof.
It is urged as error that the trial court did not in his charge technically define robbery. This contention is borne out by the record; but during the trial counsel for defendants objecting to certain details of the hold-up, stated that the robbery was not disputed. This amounted to saying that it was admitted; that no further formal proof of it need be offered by the government. This admission was wholly consistent with the defense, which was an alibi; in effect, that, though concededly there was a robbery committed, it was not committed by the defendants. No charge was requested by defendants, nor was the attention of the court called to the omission, sp to charge. Throughout the case, counsel for defendants treated the fact of robbery as a conceded one. Clearly, then, it was not error for the court to omit to define robbery.
We think there is no merit in the contention that Ballard Todd, was not, when robbed, a person in the lawful charge, control, and custody of the United States mail, of which he was robbed. The words “lawful charge, control, or custody,” as used in section 197 of the Penal Code, are, we think, words which are used in their ordinary meaning and significance, as words of the English language. If Todd had-stolen this mail bag, and thereafter had been by defendants robbed of it, there might arise some question as to the jurisdiction of a federal court to take cognizance of the matter, for in such case his custody would have been unlawful and not lawful. But here the facts are that Ballard Todd was the son of the postmaster at Sugar Creek post office. This postmaster conducted a hardware store, in partnership with one Gates, who had the contract to transport the mail to and from the post office to the railroad station. Ballard Todd was an employe in this partnership hardware store, which was operated in a building near that in which the post office was kept. He was under the direction, as to the work which he was to perform, of both the postmaster and Gates. Under orders from Gates, he was engaged in transporting the mail from the station to the post office wh^i the robbery in this case occurred.
It is most earnestly argued by counsel for defendants that .the trial court erred- in permitting the assistant district attorney to cross-examine Ray and Boreman, who were called as witnesses for the United States. The law on this point presents no particular difficulty. In its simplest statement it is that, when a party calls a witness and is surprised by affirmative evidence given by the witness, which actually aids the adversary party, the party calling the witness may cross-examine him, and show statements made by him which are contrary to the testimony given by him on the witness stand. State v. Bowen, 263 Mo. 279, 172 S. W. 367; Hickory v. United States, 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; Swift v. Short, 92 Fed. 567, 34 C. C. A. 545; St. Clair v. United States, 154 U. S. 150, 14 Sup. Ct. 1002, 38 L. Ed. 936; People v. Jacobs, 49 Cal. 384; Chism v. State, 70 Miss. 742, 12 South. 852; Langford v. Jones, 18 Or. 307, 22 Pac. 1064; Worley v. Spreckels, 163 Cal. 70, 124 Pac. 697; Marugg v. Kells, 146 Ill. App. 394; Clancy v. Transit Co., 192 Mo. 615, 91 S. W. 509. But when the witness merely fails, when called, to testify in favor of the party calling him, as he was expected to do, but says nothing which tends to aid the case of the adversary party, he cannot be
Both phases of the above point are presented in the instant case. Here the witness Boreman, called by the United States, to the expressed surprise of counsel who had called him, made statements in his testimony which hurt the government’s case and were materially helpful to the defendant Randazzo. In such case, as said in the rule above stated, the government had the right, on the ground of surprise, to cross-examine Boreman, and to show that the government, which produced him and in effect vouched for him, was surprised, for that he had theretofore made statements, on which the government relied, which were at variance with the testimony given by the witness when on the stand. For these reasons, cross-examination was permissible, and there is no merit in this contention urged, so far as concerns the cross-examination of this witness.
The situation as to the witness Ray is somewhat different on the facts. This witness, when on the stand, failed to testify as counsel for the government confidently expected he would. As the basis for this expectation, the government relied on an alleged statement made by the witness, to the assistant district attorney, which, it was intimated, was had in a conversation with counsel for the government and later embodied in an affidavit. But Ray gave no evidence in any way helpful to the defendants, nor did he aid the case of the government. In short, his testimony was wholly colorless and negative in probative effect. In such case, any showing of any former statements of the witness, in which he said things hurtful to defendants was inadmissible.
But here the question of fact comes into the case, to modify the rule. This alleged statement or affidavit was neither offered, nor given orally, in evidence to the jury, and when the witness Ray was asked if he had not made such a statement, he categorically denied it; and, while he was asked if he had not made an affidavit to the effect that Randazzo had made admissions to him, this question was not answered and was subsequently withdrawn by counsel for the government. Act Feb. 26, 1919, 40 Stat. 1181; Rich v. United States (C. C. A.) 271 Fed. 566. Thereupon defendants’ counsel cross-examined this witness at great length, in an effort to show that any statement made by this witness had been, made either under duress, while in custody on a criminal charge, or in the hope of an amelioration of the witness’ own situation, touching crimes with which the witness himself then stood charged. We conclude, then, that for these reasons, and because no hurtful evidence was. elicited by inadmissible methods (Rich v. United States, supra), and because, even if there had been hurtful evidence elicited, defendants waived it by the methods they themselves used in cross-examining this witness.
We think there is no merit in the contention that the evidence adduced upon the trial was, upon the point of the guilt of defendants, insufficient to take the case to the jury. Two witnesses who were present at the robbery — Ballard Todd, who had charge of the mails
Lastly, it is contended that the court erred in failing to charge that the jury had the right to acquit one or both of the defendants, according as the jury might find the facts to warrant. In fair effect, the court did charge in such wise upon this point as to acquaint an intelligent jury that they had this right. But, even if the court had failed in this, no exception was taken to the charge, and no request was made for a more explicit and succinct charge upon the point. This is true touching numerous alleged errors as to the charge of the court as given, and as to his alleged failure to charge. Defendants may not stand silently by, in a case involving no vital question of omission to charge, and then raise, for 'the first time here, points germane to that here urged. Carson v. Jackson, 281 Fed. 411, 52 App. D. C. 51; Rosen v. United States (C. C. A.) 271 Fed. 651.
We think the evidence was ample to sustain the verdict, that the court committed no error meet for reversal, and that the case ought to be affirmed; and so it is ordered.