Appellant Hill and a co-defendant Johnson were tried and found guilty by a jury of both counts of an indictment charging them with conspiracy to rob a bank and a second substantive count of aiding and abetting the robbery of the same bank. The triаl court entered judgment of acquittal as to both defendants on the conspiracy count and ordered a new trial for appellant Hill on the aiding and abetting count. 1 Appellant was again tried and found guilty by the jury on Count II. The trial court in denying appellant Hill’s motion for judgment of acquittal notwithstanding the verdict made the following observation:
In our memorandum and order filed December 7, 1971, which granted this defendant a new trial, we stated that ‘It is obvious that the question of whеther the government made a submissible case against defendant Hill for aiding and abetting is an extremely close questiоn.’ We then indicated that on retrial it was possible that the government might produce more evidence. That pоssibility, however, was not realized and we are again faced with what we believe to be an extremely close case. Indeed, so close, that it is our judgment that the defendant should be afforded the opportunity of having the appraisal of the Court of Appeals before serving any sentence of custody which may be imposed by this Cоurt.
We agree with the trial court’s observation that we are faced with “an extremely close case.” After careful review of the record we are convinced that the trial court erred in not entering a judgment of aсquittal. The evidence introduced in the second trial was similar to that offered in the first trial 2 and will be repeated only to the extent necessary to a clarification of our ruling.
The sole evidence in the case consistеd of the testimony of an accomplice and participant in the actual robbery, Frank Marcelis White, Jr., plus a stipulation setting out the facts of the robbery including the fatal shooting of Roscoe King, Jr. and the wounding of the witness White at the scene. We, of course, take that view of the evidence most favorable to the Government. United States v. Henson,
White testified that: On the day of the robbery he met with King and others in an apartment in Kansas City; one of the individuals, Green, left and returned with appellant; in appellant’s presence Green stated that appellant *1289 would be waiting on a corner (to which King and White would be driven by one Stamps after the robbery); “and we was supposed to give her (appellant) the guns аnd the money;” “and she just sat there and she had her glass, she shook her head (later described as a nod of the head) like she understood what he was talking about, then she got up and went in the bedroom;” when the parties left the apartment appellant got in a rented car with Green and a man by the name of Frank, she was carrying a “big” handbag; 3 four оr five blocks after leaving the apartment, White lost track of the car in which appellant was riding ; he did not seе appellant again until her first trial on the charges herein. No other evidence was offered exceрt the stipulation as to the fact of the robbery and the shooting which took place at the scene.
The Gоvernment contends that appellant’s assent (nod of the head) to her part in the plan, plus her other actions in leaving the apartment at the same time as the other participants and getting into the car which Green was driving indicated her desire and cooperation in seeing that the plan succeeded, thus making her an aidеr and abetter under the law. Appellant, on the other hand, contends that at the most her actions indicated nеgative acquiescence which was insufficient to constitute the offense charged.
In United States v. Kelton,
Reversed and remanded for entry of judgment of acquittal.
Notes
. United States v. Johnson and Hill,
. See Fn 1.
. White did not recall whether appellant. had the handbag in the apartment or not. He did recall she had it with her when she went to get in the car and, depart with Green,