*1 MILLER, Before WILBUR K. PROC- BAZELON, TOR and Judges. Circuit MILLER, WILBUR K. Judge. Circuit juryA in the United States District Court the District of Columbia found Albert guilty killing another while perpetrating robbery, degree.1 murder in the first We are con- Allen, appeals cerned with Albert death imposed upon sentence him. murdered man was Schotn- ber, employees known to his fellow at the Company Uline Ice as “Oatmeal.” At 5:30 30, 1950, m. on superintendent sent Schombcr on his last trip day special as the driver of a delivery truck. Less than an hour later he in the slumped found Uline garage, steering behind wheel his truck. He bleeding profusely from a wound be- eyes, nose, tween the and from his ears and clothes, mouth. Blood was on his his face hospital and hands. He died in at 1:20 following morning, a. m. the Sunday, De- 31,- Although cember Schomber had pay $53.61, cashed his check for noon, had received at and had collected 22-2401, 1. Section D.C.Code 1940. *2 adequate push broom, obtaining an customers, thus police a from more than $70.00 in, probably weapon. Oatmeal came When empty pay person an found on his was used with p. the club about 6:00 delivery few cents envelope, book and a wallet, Taking the victim’s fatal effect. change. money, scene, they left divided Allen, em- appel’ant, Albert M sewer at 3rd and the wallet in a threw Company truck by Ice as a ployed the Uline Streets, E., which it later N. from cutter. He finished driver and ice cube by police. recovered Saturday, December
work at noon on at the at 5:30 m. was about 31, 1950, Al- Sunday morning, December Streets, W., N. with corner of and 0 9th went work the usual time and soon len Proctor, his friend and later his co- Trank He was dead. learned that Oatmeal 'They went in a cab to a delica- defendant. police two in conversation with officers Uline tessen across from the street foreman, later told the latter and was company garage then -fell in with management had instructed to n Boddie, employee. another Uline notify employees any nearby liquor bought store At a Boddie from were absent work. whiskey, the three consumed in Monday, January 1, again Al’en On alley. m. About 11:00 a. went work as usual'. Streets, after, to 9th and Allen and Proctor he drove his truck O Soon entered with and told awaited where he a talk the return of Oat- meal, who, driver, They him of Oatmeal’s death. had second as C.O.D. would be (cid:127) conversation at the same corner same apt person. They have on his prepared evening breaking for him the handle of after Allen finished work.2 with A. follows: pened was they question they Ninth Allen’s went I came back time? deliveries? A. tion with back? questioned they No, did. after respect [*] “Q. Did “Q. “Q. “Q. I see. “Q. “Q. Had help No, killed when him at that time have to Ninth * * * ain’t to make over there. And Did Was Proctor Oh, Did A. HeA. I version of these to the didn’t. didn’t. $ [*] had made some deliveries him questioned you?’ you questioned O Oh, yes, j'ou you you A. That rob they questioned to the corner. asked you You went and made Street? robbed. He and O. returned to about' was. have a further conversa- Henry couple have say you He were about And me ’* I told [*] ashed me what I was me.’ about me he me Company? again, I Jackson. working of deliveries A. it?’ right. say, witness him conversations, came back same when say, Ninth and And this working. conversation [*] I ‘Have wanted ‘Yes, somebody say, . ‘Yes, matter? matter? you I *** it.’ stand, a few came man, hap- they ‘No, did A. I [*] [*] I n on to tell can no words that he He going on. to strike don’t strike twice him? A. too A. A. Told him. have night. you to tell me * thing. He job. one I was told bim was “Q. “Q. “Q. What “Q. “Q. Did “Q. “Q. All some other danger. you, said, George Schomber, Oatmeal, as I call asked me.’ at that us? A. much mind. that? gotten talk with Are What, What What said, ‘What in the same me * be me what me that he I you telling you X want with it out of the I A. said, say, ‘What else was said man are No, used, or did be statement bow said, giving us, you mean,’ anything, did robbed this Well, on with crazy, it, you ‘You T know in the same Tell us what did I A. smooth.this * ‘You tell job?’ no precede place by thought this. I you speaking don’t want me and then be went said to longer you paper, or some- must think about the didn’t now, my there between man. you clarify he went on * ain’t you says, me.’ place.’ said; until route. the exact lightning him. pay job weren’t haven’t he did? crazy.’ say telling might to do ‘You ‘The you of? A. * hope 2—in Proctor, come to who struck woul'd Alarmed because interrogate him, blows, disposed to suffer the his house to fore- fatal was not alone, consequences pro- man decided to would do. waited *3 until 9:30 by talking the and a. but the officers did not tect himself to Streets, throwing the on To come. he went to 9th O blame his friend. and all Proctor,3 pro- deliberately stayed away had another talk with that end he from and plant, ceeded he morning Tuesday, January work the next to Uline where arrived' — Monday morning heard the officers around there that day morning, A. [*] from conversation? A. Not until he time front.’ ing, do say didn’t call I told me I this, that conversation? A. Ho was. right. alley behind the car in there. there?’ He told and he said, said he pocketbook him twice. said the did it. And I and he insisted that He told me he stick, er he times. man?’ time. He say, “Q. Did “Q. “Q. All “Q. say, asked “Q. Will “Q. “I times did, anything lie man ‘You did he about another said, work. way? ‘Why ‘Where did or an iron?’ Was Mr. Now, Monday night, Is and kicked couldn’t I Ho back, I told me he man and he come around with. Ho told me say, [*] said, garage. no sure said he went around to he ‘How out of the man’s car, you said he filling how related to on [*] say anything A. How did that had concerning names. pocketbook, ‘Yes.’ I left him. I come out asked him a say ‘It talked to all got you tell us and after get you.’ you go did I asked him about kicked you get Schomber been Was did they about station, said, took all that [*] anything hit the man a you [*] it out few hit he hit him robbed a he followed a man? A. couple you hit didn’t understand. there was the Then he told me what occurred and went him go recall about ‘I went in the man with a questions Mr. you # what did he hit Schomber? around to the say, then he kicked more than one and the build- I about it? He the back hit back pocket?’ between the discussed know to one time. to couldn’t stick also the back of [*] Schomber? I times guy. details of [*] couple ‘A man you stick. That way. further got to the from?’ that couple stick.’ coupe about there get man, Sun- way, that aft- He off it, go [*] I [*] I I I nobody.’ me versation what don’t telling anybody nothing He That was on going it, Yes. about me.’ this.’ you knew the M which would just in front of the I ‘If sation? A. That was versation.” did he morning conversation: where did he right.’ I ‘If what was in the intend ing says, case me scribed to me where he ‘You are four corners on and M Proctor and mo.’ And he go, etbook. This “Q. “Q. “Q. “Q. What should “Q. What did stated to I Street, they saying nothing you say why to tell but I said, so sure I ain’t man pocketbook say you ask me about it.’ am me, something know ‘I would I is Allen’s- version of the it? A. That was all of All Streets. Was Did he I asked him say it, put I say, jail ask me who was on the corner I wanted to know that. same, going I am was. A. He told tell it?’ lie went ‘You boys you said, right. ain’t it. —I me.’ it ‘Man, you him, if that happen be ‘Yes.’ He Monday night. are I right straight something.’ I if I have to He did tell me that. put tell going to tell on the liquor I knew he had in his ain’t worried I go.’ ‘You don’t going you say does just I on pocketbook. Tell us what that con- knowed the to I going said, on drank say if on said, A. I asked Proctor why. nobody Monday night? Ninth I to tell them it was want to know init him, corner store.’ it had in it? A. corner across over happen.’ and told me what about it.’ to take me to say, Monday’s you about I told the corner with pocketbook, says, T put to tell Monday’s ‘No, toll with, said, guess I him Ho I ‘All worry me, about ain’t robbed across from says, it, said, ‘Why I respect T see no about I ain’t picture in it? A. said, He asked right, nobody?’ at Ninth ‘You are but M.’ He Tuesday he anybody you He de- conver- lies, I I ‘There it, about about pock- says, what said, said, ‘You they con- jail. you you you but are go- on, we A. to come over about 5:30 P.M. 10:00 a. m.
a few
affer
Several
minutes
there,
systematically in-
would
he didn’t come
but
officers were
times after
employees,
over.
several
terviewing the Uline
a task
saw
Monday
say
about
begun
that but he
afternoon.
30th,
called,
Although
“Then on
he had
again
&
corner of
on the
9th
awaited his turn
was admitted
Sts.,
about 5:00
to his
N. W.
noon. He
several untruths as
P.M.
told-
job
was still
and,
to know
night,
put
wanted
Saturday
whereabouts
good.
yes.
We walked on
it,
things
“I
done that
told him some
*4
& N. We went
done,
time
down 9th Street to 9th
enough
hadn’t
and I
bought
whiskey
and
a half
in the
store
Apparently
not
was
to do them.”
he
pint.
caught a
Later, probably
out
ready
We came
and
Proctor.
to accuse
L,
E.
goes over
3rd & N.
-cab. We
to
headquarters
to
p.
3:00
Allen went
up
walks
officers,
stops
getsWe
out of the cab and
making on the
with two
to
to
then
back
he
3rd & M and
we came
way
pick up
clothing
shoes and
the
to
back we saw
way
3rd & L. On
previous Saturday.
In a test
the
the
had worn
Schomber,
George
we call ‘Oat-
presence, a
chemist
made in his
loading
I told
meal’
a truck.
Frank
ex-
on his
bloodstains
found
coat.
loading truck
now.
there was Oatmeal
plained
girl
struck
by saying his
friend
4:00
to
At
caused his nose
-bleed.
and
garage
walks on in
the
“We
front of
Sergeant
in
Furr he was
Allen told
m.
in
Dorsey
and
Holmes was
and
Saturday evening,
the
garage
the Uline
George
garage
the
their
trucks.
.in
Oatmeal,
him to
and could lead
on
assault
Holmes’ truck
jumped
Boddie he
off of
They drove to 9th and
guilty man.
the
yelled
wait.
waited
and
for me to
Proctor, who
out
pointed
where he
Streets
the
and he -comes on down
Boddie
headquarters.
to
immediately taken
was
whiskey store
goes
We
the
street.
buys
K.
3rd &
Boddie
at
p. Allen made
7:30 m.
at about
Beginning
alley
pint
goes
and we
in the
and
half
it had
When
confession.
full and detailed
* * *
it.
drink
writing
-read
and
reduced
correction, which was
him,
one
indicated
he
Ben,
jani-
who is the
“Then we saw
him,
typist
initialed
and
the
Ulines, pull
garage
tor
into the
with
at
Later
signed the document.
Coupe.
out
the
Then Ben left
of the
certain Uline
confession
his
repeated
he
office,
and
garage and
into the
re-
called. We
had been
employees who
into
then me
Frank went
the
and
written
portion
small
here
produce
through the
door.
garage
small
We
enough
show
confession,
the
went back there
the back on
crime was
the
he said
outline how
broad
side,
left
where the trash barrels
hand
committed:
up
kept,
Frank picks
a broom
are
and
sitting
that was
beside the trash cans.
knowing
Proctor
Frank
have been
“I
push
It was a
broom
wooden
the
seeing him on
year by
about a
picks up the broom
handle. Frank
and
Streets, N. W.
9th & O
corner' of
out of it and tells
takes
handle
the
the
together. On
Satur-
drinking
and
up
the
and break it
to stand
on
handle
last,
on December
before
day
the
held
handle and I
in two. He
Sts.,
9th & O
23rd,
at
met Frank
stepped
it and broke
did I
W.,
he asked me
N.
lays
handle
too
down and
‘It’s
money
could
some
where he
up
he
light.’
picks
the broom
Then
the address
yes
him and
comes in.
until Oatmeal
holds
Company.
I told him
Uline Ice
just
Schomber,
or
he
time
how
Did he tell
pocketbook,
know? A.
gotten
in the
out
much
he
got.
said he
any?
is what he
don’t
That
me it
pocketbook,
n know —.”
$43.75.
amount
total
Is that
pulls up
gate
Testifying
behalf,
in his
“Oatmeal
own
Allen did
gate
garage
categorically
planned
and he
deny
on the
raised the
crime,
parks
his
present
in with his truck.
he was
garage
came
newspaper
gets
aiding
robbery,
the assault and
truck
out
and that
money.
lunch box in his hand.
and a
divided
He was
hit him content to say
behind
walks around
drug
was untrue.
deny
the head twice.
over
making
his
right
jail
hand side of
admission to the
around
official on
Wednes-
day
truck,
gets
January
pocket
looks
face
kicks
in the
twice.
billfold and
This is
unusual confession case in that
Then I let
door down and we went
testify
did not
that his confes-
out.”
sion was
physical
elicited
or psychologi-
cal
by any
pressure.
torture or
sort
Nor
Proctor also confessed soon after arriv-
that he was
caused
admit
Both were then taken
ing
headquarters.
guilt
fact that
he was in the
where
re-enacted
*5
presence
police
of the
or was being de-
presence
crime in
the'
of
tained
them. To
contrary,
dispute
other witnesses.
was some
There
from the witness stand the officers treated
between them as
whether Allen had
great
“fine” and “with
respect.” He
Wednesday, January
Oatmeal.
struck
On
many
insisted
times that he was not mis-
hearing,
coroner held Allen to
after a
3.
await
any
treated
way during
the interviews
grand jury
equiva-
action. This
police.5
with the
voluntarily
went to
hearing
committing
lent
to a
before a
them in the
place,
first
and then went with
magistrate.4
day,
The next
Allen confessed
headquarters
them to
voluntarily
again,
Superintendent
according to the
of
them information. He “decided” to point
Jail,
Classification at the District
who testi-
out Proctor as the murderer.
Thursday,
fied that in a conversation on
January 4, Albert
Allen asks
Allen told
us to reverse his conviction on
theory
Proctor had asked
him about
be-
week
that his confession was inad-
fore the murder
missible
where he could
some
because it came after
illegally
and that he told Proctor that Oat-
detained
from noon
only
Uline’s;
meal was the
C.O.D. driver at
until 7:30 m.
being
without
taken before
30,
that on
committing magistrate.
Pie did not state
and,
Proctor went to
when Oat-
stand,
the witness
nor does he now
in,
meal came
assert,
Proctor hit him
twice
that his admissions were induced by
push
handle,
the fact he
money,
broom
took his
custody.
was in
Pie simply
6
kicked
twice on the head.
that under the
ruling
McNabb
a con-
1940; Neely
11-1205,
4. Section
period
D.C.Code
And does that cover
States,
U.S.App.D.C.
177,
o’clock,
v. United
79
from 12
when
first
talked to
519,
denied, 1944,
you,
144 F.2d
certiorari
up
until
323
O,
to 9th and
754,
83,
you?
U.S.
05
89 L.Ed.
S.Ct.
that no one intimidated
A. That’s
right;
no one did.
following
typical
5. The
is
of several state-
anyone
any
“The Court:
time,
Did
ments to the same effect:
any police officer,
intimidate
or
May
“Mr.
[Allen’s counsel]:
it
Miller
threaten
or strike
please
Honor,
Your
we have contended
No, sir,
“The Witness:
did not.
beginning
from the
and now contend that
“The Court: At no time.
he didn’t
threaten
Mm
didn’t abuse
“The Witness: At no time at all.
Mm.
“By
any
Mr. Bacon: Q. Was
“The Court: All
pressure
any
exerted
“By
[government
counsel]:
Mr. Bacon
pressure.
A. No
any
any
Q. Did
other
officer make
any
any
Of
kind? A. Not you,
promises?
threats
or
A. No.
kind.”
way?
any
“Q. Or
intimidate
States,
1943,
A. No. One
them told me that
McNabb
United
318 U.
332,
608,
it I must
S.
tell be-
63 S.Ct.
necessary official, any pressure the motivation this is other sort of committing and that fore a confession, that he stated prisoner’s of but also regardless whether true it, prompted motive real motive which psychological effect detention had —a custody. unrelated to the fact that he was him confess. causing confession, Consequently, we think in Pierce v. For the reasons stated attacked, ad otherwise States, U.S.App.D.C. 19, 197 missible. rule, as 189, the McNabb we think F.2d States, 1948, re ground Another reversal amplified Upshaw v. United is the denial of L.Ed. lied on 335 U.S. 69 S.Ct. decisions, illegal be On the second detention motion for severance. other trial, although magis day before evi committing presentment fore a. more, introduced, had been both without dence defend trate, standing alone and ground dur ants asked a severance on confession invalidate does not inconsistent, continuance, detention their defenses were without ing unless the its ac pointing out to the court where incon produced So we cannot the disclosure. lay. cept sistency general that his “It is illegal Allen’s contention rule persons jointly should be tried to illegal it was detention —if indic.ted —invalidated separate pro gether, granting whether trials is a regardless of confession (as matter discretion.” Hall v. question then becomes duced *6 States, 168, discussion, U.S.App.D.C. 166, deciding, without 83 168 F.2d for the suming 161, 163, 1193, denied, unlawfully whether 4 detained) A.L.R.2d certiorari was that he 1948, 853, presumed 1509, must be 334 U.S. 68 92 illegal detention S.Ct. L.Ed. his States, Cir., caused him to In Dauer which v. United 10 coercion 1951, 344, denied, though attribute F.2d confess, 343, 189 certiorari even not 898, 232, effect. 342 U.S. 72 that coercive S.Ct. it was said: “ * * The mere fact that there may be circumstances There hostility is between defendants or that should, proof, without con which court may try save one himself the ex prisoner’s confession was the fruit clude a pense of is in itself another alone not should of detention and therefore unlawful grounds require separate sufficient pre not received But evidence. trials. It is when the situation is prisoner’s sumption that detention such that the exercise of common sense not be in should elicited confession. judicial judgment and sound should when, case, in this the defend dulged lead one to conclude that one defendant testimony describes dif ant’s trial, cannot have fair as that term him to tell motive caused ferent law, understood in a severance police. of Allen’s account story to the his granted.” should be with Proctor conversations three The District Court did not abuse its dis- Tuesday shows reason Monday and grant refusing cretion in a severance. -confessing: attempting to forestall he was Nor was discretion abused in denying that he had com accusation motion a new Allen’s trial. purpose, That such murder. mitted appellant court also erred in the first conversations formed permitting the District official to Jail demonstrated, Monday, is Proctor on guilt concerning Allen’s of admission only by con the substance those January plainly to him on 4. This was versations, but his behavior on also competent. when he absented him Tuesday morning carefully point We have considered each questioning work to invite self from when, addition police; and third and advanced after a final Proctor, record im we have studied entire he went see prejudicial occurred which mediately office error and uninvited to appellant. pointed by the We found out about the -crime. talk
335 conducted judge none. The district way ex- painstaking
trial in a smJi concern meticulous throiW-'iout a
hibited appellant.
for the right^of
Affirmed. BAZELON, (concurring C Judge ircuit
specially). case, I do
Under circumstances that there “un it can be said
not think delay” the accused be
necessary taking magistrate within the committing
fore a meaning 5(a) the Federal Rules Rule concurring Cf. Procedure. Criminal States, 1952,
opinion, 91 Pierce v. United 19, 189;
U.S.App.D.C. United 197 F.2d 65, Mitchell, 1944, 322 64 U.S. States 896, 1140; 88 L.Ed. United States v. S.Ct. 848;
Leviton, 1951, Cir., 193 F.2d Haines Cir., States, 9 188 F.2d
v. denied, 1951, 342 U.S. certiorari join Hence I do not con S.Ct. 172. “ * * ruling of the court’s
sideration presentment illegal detention before magistrate, committing alone standing more, does not
and without invalidate a continuance, during
confession made its un produced the detention dis
less *7 respects all other^ closure.” In con opinion. court’s
cur LOVETT, Secretary of v.
BURNS Defense, al. et LOVETT, Secretary
DENNIS Defense, al. et 11419, 11420.
Nos. Appeals Court States of Columbia Circuit. District
Argued June 1952. July 1952.
Decided Granted Dec. of Certiorari
Writ