This criminal case involves the bizarre story of a cruel and brutal murder committed by two Georgia high school teachers, pressed by financial problems, who kidnapped a Georgia bank president at night from his home, robbed his bank, and killed him after a severe beating climaxed by shooting him.
*346
This matter is before us for the second time. In his first trial, Mobley was convicted and sentenced to death for having violated 18 U.S.C. § 2113, pertaining to bank robbery, accompanied by assault and resultant death of the victim. Mobley appealed, challenging the racial composition of the grand and petit juries. We remanded the matter to the District Court, Mobley v. United States, 5 Cir., 1967,
A codefendant, Andrew R. Oliver, pled guilty at both trials. At the first trial, Oliver testified for the Government, admitting his guilt and incriminating Mobley. At the second trial, Oliver was again called as a Government witness, but after having taken the stand he refused to answer any questions. The complete transcript of his former testimony was admitted into evidence and read to the jury. Appellant alleges that the prosecution’s introduction into evidence of the so-called “infected” testimony from an antеcedent trial violated the confrontation clause of the Sixth Amendment of the United States Constitution. He also alleges that the District Court committed error in permitting the introduction of a statement of the victim as a dying declaration within the exception to the hearsay rule. We have carefully examined all the errors complained of, and for reasons hereinafter set forth in detail, we affirm the conviction.
On March 8, 1965, shortly аfter 10 p. m., the Exchange Bank of Unadilla, Unadilla, Georgia, the deposits of which are insured by the Federal Deposit Insurance Corporation, was robbed of approximately $3,778. In the early morning hours of the following day, a night policeman in Unadilla, upon entering the bank, discovered the President of the Bank, Thomas E. Woodruff, covered with blood, lying in the area of the bank vault. Woodruff had been beaten and shot. He was taken immediately to a hospital and was there attended by Dr. Christmas, who later described the beating as the most severe one he had ever seen in his medical practice. Mobley was apprehended on the evening following the crime. Two days later, Mr. Woodruff died. Oliver fled the state but returned and surrendered himself to FBI authorities ten days following the robbery, at which time he admitted his participation in the crime and implicated Mobley. Based on infоrmation from Oliver, a search warrant was obtained for the Paradise Inn, which had been operated by Mobley, and a search revealed two bank bags containing $756 in coins, an iron reinforcing rod and clothing worn by Oliver and Mobley at the time of the robbery.
Agent Cheek of the FBI, who had investigated the scene of the crime, talked with Woodruff in the emergency room of the hospital, accompanied by Dr. Christmas and another FBI Agent. He obtained from the victim the following account of the robbery, which he was permitted to recount to the jury over defense objections. Woodruff had returned to his home from a Methodist Church stewards’ meeting about 10 p. m. on March 8, 1965, and as he was pulling into his driveway he observed another automobile. As he opened the door of his car, two Negro males alighted from the other car. One of them was armed. At gunpoint they ordered him onto the floor of the back seat of their car. Because of the darkness and the fact that the men’s faces were covered with masks, Woodruff did not recognize them, but noticed that they were of slender build, approximately 30 years old and appeared to be wearing suits. One was approximately 6 ft. tall; the other about 5 ft. 10 in. tall. He could not determine the color of the car, but it was a late model and possibly a Chevrolet. Hе remained on the floor of the car, covered with some type of rug, until they arrived at the bank, where at gunpoint he produced a *347 key and opened the rear door of the bank. He handed over $400 from the safety deposit vault, some change from another vault, and $300 from his wallet to the robbers. When Mr. Woodruff protested that he was unable to open the main inner vault because it was secured by a time lock which would not open until the following morning, the assailants began to beat and kick him and to stomp on his chest. One of the men held a revolver; the other, a rod. Woodruff did not remember being shot.
The admissibility of dying declarations, on behalf of and against an accused, has long been recognized by the Supreme Court as an exception to hearsay evidence. Such declarations are admissible to the fact of a homicide and to the person by whom it was committed, contingent, however, upon a showing that the declarer was aware of impending death at the time the statement was made. Mattox v. United States,
Appellant contends that the Government failed to prove Woodruff’s awareness of the gravity of his condition and that the admission in evidence of his declaration to FBI Agent Cheek was therefore error. Appellant predicates this conclusion on twо premises. First, Woodruff was never told or never said that he was about to die. Secondly, he was given hope of recovery by the attending physician, who testified on cross-examination that he told his patient that he was in no condition to be transferred to another hospital, but in the event that he did improve he probably would be moved to a hospital where he would receive the attention of a specialist.
It is, of course, true that admission of utterances of a dying person should be received with great caution.
However, a declarant’s sense of impending death may be made to appear “from the nature and extent of the wounds inflicted being obviously such that he must have felt or known that he could not survive.” Mattox v. United States,
supra,
Immediately following the discovery of the victim, an investigation was made at the scene of the crime by the Federal Bureau of Investigation. Woodruff’s blood-soaked coat was found at the bank. Yarn adhering to the coat was identical to fibers in a carpet taken from appellant’s car. Just prior to the robbery, two Negro males in a maroon-colored 1965 Ford Falcon had purchased three cans of “Colt 45” malt liquor from a service station, whose manager positively identified appellant as one of the purchasers. One such beer can was found in an alley close to the church where Woodruff had attended a meeting prior to his abduction and where a parkеd car had been seen. Another beer can of the same type was found on a road approximately one block equidistant from the bank and the Woodruff residence.
A neighbor of Woodruff who resided across the street testified that between 9:30 and 10 p. m. on the night of the robbery, he saw a strange-looking car slow down and almost stop in front of the residence. Approximately 10 to 15 minutes later, he saw the same car approach and then turn in to his own property to a point behind an old abandoned tenant house. This incident caused him to leave his house with the intention of investigating; however, the car pulled out at that time. Shortly afterwards, the car returned; it pulled into the driveway and stopped behind Woodruff’s car. The neighbor described the car as red or maroon colored. Appellant owned such a ear. On the day following the discovery оf Woodruff in the bank, bank keys and bags containing money were found in a closet of appellant's classroom at the high school by a janitor at the school. Additional bags of money, blood-soaked clothing, and a blood-stained metal pipe were recovered from the loft of the Paradise Inn, a cafe operated by appellant. The blood on these instruments was determined to be of the same type as that of the victim. Pieces of human hair and woolen fibers adhering to the metal pipe were microscopically identical to samples taken from the victim’s head and coat, respectively. A ballistics expert testified that the bullet removed from Wood-ruff’s body was the same type as the five cartridges found in the gun taken from Oliver’s room; that the bullet had been fired from a 6-groove barrel.
At the second trial of appellant, Oliver, whо had previously on two occasions pled guilty, steadfastly refused to answer questions. His testimony given at the first trial of appellant was read to the jury, over objection of defense counsel. The testimony describes the manner in which Oliver and Mobley planned and executed the crime. They were good friends and both employed as school teachers at the same high school at Montezuma, Georgia, in the vicinity of Unadilla, Gеorgia. Mobley conceived the idea of robbing a bank several *349 months prior to the incident, after a discussion between them of their respective pressing financial conditions. Mobley later suggested the feasibility of robbing the Exchange Bank of Unadilla. A banker there kept late hours. There was a public restroom in an alley at the rear of the bank where the banker parked his car which would serve as a hiding place. When the bank official departed for the night, they would accost him, force him to open the vault and produce the money, then tie him up and leave. The money could be hidden until later. The plan was to use a disguise and to carry guns. Oliver succeeded in obtaining a gun from a pawn shop in Albany, Georgia. On March 1 or 2, 1965, armed with a gun and steel rod, the two men attempted to put their plan into action. They drove to Una-dilla and disguised themselves. However, just as they were about to accost Woodruff, Mobley’s stocking mask ripped. Fearing that Mobley would be recognized, the men discarded the plan temporarily. On March 8, another attempt was made. Mobley picked up Oliver in a 1965 burgundy-colored Ford Falcon and they drove to the bank. Again they were unsuccessful in their attempt to waylay Woodruff as he left the bank, so a decision was made to pick him up at his residenсe. Before doing so, the men stopped at a filling station and purchased several cans of “Colt 45” beer. They drove around town looking for Woodruff, passing by his home several times. At one time they parked in an alley across the street from the Woodruff residence and waited, but a barking dog and the sight of a neighbor emerging from his house sent the men off again in pursuit of their intended victim. Woodruff’s car was finally seen parked in a church lot. Mоbley pulled up into an alley in front of the church and he and Oliver sat, drank beer and waited. When Wood-ruff left the meeting, the men followed him to his home. Woodruff entered his driveway and alighted from his car, whereupon Oliver approached with a gun in hand and ordered the victim into Mobley’s car. Woodruff was placed between the two men in the front seat, 2 and a rug-type floor mat was thrown over his head. Woodruff, begging not to be harmed, agreed to cooperate. At the bank, he unlocked the door and then produced money from a safety deposit vault, a wallet, and the outer vault leading to the main vault. The money was placed in a pillow case and several bank bags. Woodruff informed the men that because of a time lock on the main vault he had no access to its contents. Mobley then proceeded to beat him with the steel rod. Oliver dropped his gun and tried to pull Mobley away from Wood-ruff. In the scuffle, Mobley’s face mask slipped. Mobley then grabbed the gun and shot Woodruff. After taking approximately $315 apiece, the men hid the remainder of the money and the bank keys in a closet adjoining Mobley’s classroom at the high school. Mobley agreed to dispose of the disguise clothes in a loft above his shop (Paradise Inn). On the following day Oliver, being frightened, left town and traveled as far as Montgomery, Alabama. Word reached him that Woodruff had died and Mobley had been apprehended, whereupon he returned and surrendered himself to the police and FBI officials on March 18. Oliver identified the clothes, the murder weapons and the car used on the night of the crime.
We find no violation here of the principles expressed in Mattox v. United States,
“[G]eneral rules of law of this kind * * * must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law, in its wisdom, declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.
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“The substance of the constitutiоnal protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination.”156 U.S. at 243, 244 ;15 S.Ct. at 340 .
Death of a witness, moreover, is not the only predicate for relaxing the confrontation rule. In Snyder v. Commonwealth of Massachusetts,
“ ‘[The privilege of confrontation] was intended to prevent the conviction of the aсcused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination.’ Dowdell v. United States,221 U.S. 325 , 330,31 S.Ct. 590 , 592,55 L.Ed. 753 . See, also, Wigmore, Evidence, vol. 3, §§ 1395, 1397, collating the decisions. Nor has the privilege of 'confrontation at any time been without recognized exceptions, as, for instance, dying declarations or documentary evidence. * * * 27¿e exceptions are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule." 3 (Emphasis supplied.)
In Barber v. Page, supra, the Supreme Court reversed a conviction for lack of confrontation but on vastly different grounds. The principal evidence in
Barber
against the petitioner consisted of testimony from a preliminary hearing of a witness who implicated the accused. No cross-examination by defense counsel of the witness had occurred at the hearing. At the trial, the “State made absolutely no effort to obtain the presence of [the witness].”
“It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E. g., Mattox v. United States, supra (witnesses who testified in original trial died prior to the second trial). This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence §§ 1395-1396, 1402 (3d ed. 1940); C. McCormick, Evidence §§ 231, 234 (1954).”390 U.S. 722 ,88 S.Ct. 1320 .
Although the Court in Barber said that it would have reached “the same result on the facts of this case had petitioner’s counsel actually cross-examined [the witness] at the preliminary hearing,” it recognized an important distinction between an ordinary preliminary hearing and a trial:
“A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply beсause its function is the more limited one of determining whether probable cause exists to hold the accused for trial. While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.”390 U.S. at 725, 726 ,88 S.Ct. at 1322 .
The Supreme Court in Pointer v. State of Texas,
“The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” 6
Neither the United States Constitution nor any interpretation of it by the Supreme Court prohibits the use of the testimony introduced under the circumstances of this case.
We find no merit to any of the contentions raised by appellant. 7 The evidence of defendant’s guilt is overpowering. His conviction is
Affirmed.
Notes
. See also Carver v. United States,
. It is noted that Woodruffs statement to the FBI Agent differed in that Woodruff said he was placed on the floor of the back seat.
. See also West v. State of Louisiana,
. Pointer v. State of Texas,
. Oliver had already on two occasions pled guilty to the charge. His privilege ed. He could not further incriminate himself. Harrison v. United States,
. See also Motes v. United States,
. We believe the Trial Judge in the proper exercise of sound discretion, committed no error in permitting FBI Agent Cheek to remain in the courtroom throughout the trial, despite defense counsel’s motion that he be sequestered. See Del Cristo v. United States, 5 Cir., 1964,