Thе five appellants appeal from a judgment of conviction entered upon a jury *415 verdict. The one count indictment charged them with assault upon an agent of the Federal Burеau of Investigation in violation of 18 U.S.C.A. § 111. This statute states:
Ҥ 111. Assaulting, resisting, or impeding certain officers or employees.
“Whoever forcibly .assaults, resists, opposes, impedes, intimidates, or interfеres with any person designated in section 1114 of this title while engaged in or on account of the performance of his official dutes, shall be fined not more than $5,000 or imprisoned not more than three years, or both.”
Section 1114 includes “any officer or employee of the Federal Bureau of Investigation of the Department of Justice.”
Appellants assert as their principal points (1) that proof of knowledge of the official capacity of the person assaulted is an essential element of the crime charged and that the trial court erred in refusing to submit the issue of knowledge to the jury; and (2) that there was no evidence that the agent was “engaged in * * * the performance of his official duties.”
The necessity of establishing knowledge as a matter of law was met directly by the trial court in his charge wherein he stated:
“The Government is not required to prove that the defendants or any of them had knowledge that Foley was so employed and engaged * *
Appellants rely primarily on a statement in Pettibone v. United States,
ments which failed to allege “knowing that they were officers of the United States, engaged in performing duties imposеd by laws of the United States” and said in a case involving an assault upon a federal officer, “In such cases the scienter is an essential ingredient of the offense.” In Hargett v. United States,
“The statute making criminal such acts as those of which he was convicted does not require that the doer of the act have knowledge that the person who is assaulted, resisted, opposed, impeded, intimidated, or interfered with is a federal officer. It merely requires that the act condemned be done in order to establish а violation of the statute, and the provisions of the section apply to ‘whoever’ does the act, whether he does it with knowledge of the character of the person whom hе acts against and whatever his intent in so acting.”
The court also relied upon the opinion in McNabb v. United States,
“In the language of the statute quoted in excerpt, no exemption is exрressly made of a killer who does not know that he is killing a federal officer of a class covered by the statute. Exemption may not be implied. The words and the intent of the statute are clear beyond the necessity for any canonical construction. The statute says, ‘whoever shall kill,’ not ‘whoever shall kill with knowledge that he is killing’ a federal officer of an enumerated class, shall be punished.”
Many statutes creating crimes contain such requirements as “knowingly,” “with knowledge,” “intentionally” and “with intent.” No such prerequisite has been written by Congress into section 111 although it could easily have made knowledge an .essential ingredient. The meager legislative history suggests that in section 111 Congress merely sought to provide a federal forum for the trial of cases involving various offenses against federal officers in the performance of official duties. See Ladner v. United States,
Appellants attack the sufficiency of the evidence thаt agent Foley was assaulted while engaged in the performance of his official duties. The record clearly establishes the agent’s assignment by his superiors to be present at the funerаl of Carmello Lombardozzi and to conduct a photographic and visual surveillance of such events as might there occur and of such persons present as might be the subjects of fеderal investigation. While so engaged, the agent was assaulted by appellants in front of the Church of the Immaculate Heart of Mary in Brooklyn, New York. The trial court in his charge fairly presented the factual question of whether the agent was engaged in official duty. The jury’s verdict was determinative.
During cross-examination appellants sought to elicit the place of emрloyment of an important Government witness. The trial court allowed extensive cross-examination but sustained an objection to a question seeking to ascertain whether the night club in which the witness was working as a bouncer was in New York City. Even on appeal appellants have not demonstrated the materiality or relevance of this information. Alford v. United States,
Agent Foley’s gun was received in evidence as the instrument used to inflict the serious skull frаcture suffered by him. The gun was not unrelated to the crime and was not introduced solely to create prejudice but rather to show how such an injury could have been caused. Medical testimony was offered to establish the nature of the object required to inflict so severe a fracture, namely, an object such as a gun. The gun, therefore, had probative value and was properly admitted.
Appellants contend that the trial court should have declared a mistrial because some of the jurors had read newspaper articles which apрellants claim were inflammatory and untrue. When the court was informed of the publication in the press of certain articles relating to the trial, he inquired as to whether any of the jury had seеn or read the articles. Upon being advised that three of the jurors had seen such articles, the court proceeded to interrogate them as to possible prejudice or influence resulting therefrom. Satisfied
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that they would not be adversely affected by the articles, the court in the exercise of discretion denied the motion for a mistrial. The cautionary instructions to the jury at the time and in the charge were adequate. The problem frequently presented in large metropolitan centers in connection with long trials which attract public attention has been thoroughly covered in the opinion in United States v. Agueci,
During the trial a photograph was shown to the witness Ferraioli to refresh his recollection. The trial court who characterized Ferraioli as an “unwilling witness” has broad discretion in passing upon appropriate trial procedures. He is in the best position to sense and evaluate the courtroom atmosphere and witness reluctance or hostility. The use оf photographs and statements in connection with the examination of the witnesses Ferraioli and Ramsey under all the surrounding circumstances was proper.
The incident which appеllants characterize as “improper and inflammatory remarks during his [the prosecutor’s] summation” consisted of a question, “And where is Carmine Lombardozzi ? Could the Government have brought forward Carmine — ” At this point an objection was made and the Court said: “The defendants are not required to bring in any witnesses.” Colloquy then ensued at the bench out of the presence of the jury. In such colloquy, defense counsel represented the rhetorical question to have been “Why didn’t they call Carmine Lombardozzi ? ” The record does not substantiate this representation. The subject of the discussion was concluded by the Court instructing the jury that “the Government has a right to call any witnesses [sic] it pleases, and the defendants have a right to call any witnesses [sic] they please. But thе defendants are not required to call any witnesses ; that is their prerogative. They don’t have to prove their innocence in the case.” This was an accurate statement of the law. Since the prosecutor’s abortive comment as to Carmine Lom-bardozzi was cut short by objection and never finished, it cannot by the most speculative inference be twisted into an accusation that appellants were derelict in not producing and calling him.
Judgment affirmed.
Notes
Odom v. United States,