c284:No. 16736

EDGERTON, Circuit Judge
(dissenting).
I agree that the appellant was not entitled to a directed verdict but I think he should have a new trial.
William E. Gee, a night clerk at the Whitelaw Hotel, was robbed on November 25,1960. Only one man was involved in the offense. It is not disputed that appellant Jones, and also a man named Hastings, entered and left the lobby shortly before the robbery. The prosecution contended that Jones returned and robbed Gee. The defense suggested that Hastings did. Appellant Jones has been convicted of the robbery.
Gee testified that Jones was the robber. So did one eyewitness, Fudge. Another eyewitness, Knight, testified that the robber was not Jones, but a taller man, about five feet eight. Jones testified without dispute that Hastings was about five feet seven or eight and that Jones himself was five feet two, or five feet three in shoes. All three of the witnesses who saw the robbery were in approximate agreement about the height of the robber. One said he was about five feet seven, one said five feet six or six and a half, and one about five feet eight.
Gee described the clothes the robber wore. If I correctly understand the record, in a police line-up some hours after the robbery Hastings was wearing such clothes and Jones was not. The prosecutor said to the court: “It is the Government’s contention, Your Honor, there was a switching of clothes here.” This is nearly equivalent to saying that Hastings as well as Jones wished to make it appear that Hastings was the robber.
Gee testified that the robber had side-bums, a goatee, and hair on his upper lip. On a photograph of the line-up Gee pointed out a man, later identified as Hastings, who was wearing a goatee and a moustache, as the person Gee had “described who had the sideburns”. The photograph showed Jones to be clean shaven. The Government contended he had recently shaved.
In his charge to the jury the judge said: “The Defendant in this case offers an alibi as a defense to the charge of robbery. That is, the Defendant says that he was not at the point where the crime occurred which is named in the indictment, and that, consequently, he could not have committed the crime.” The charge did not allude to any testimony, except the alibi, that the defendant was not the robber. The charge completely ignored the confused and contradictory identification testimony. It called attention to the Government’s obligation to prove “that the Defendant has committed all of the elements of the offense with which he is charged”. By referring to the alibi defense alone, referring to the requirement that “all of the elements of the offense” must be proved, and ignoring the conflict in the identification testimony, the charge may well have implied to the jury that they also could ignore that conflict; that unless they believed the defendant’s alibi, they could not reasonably doubt that it was the defendant who attacked Gee and they should convict the defendant if the attack on Gee included all the elements of robbery.
Appellant’s trial counsel, who was not his present counsel, did not object to the charge to the jury. But in view of the testimony and the charge, I think “the failure to say in plain words that if the circumstances of the identification were not convincing, they should acquit, was error.” McKenzie v. United States, 75 U.S.App.D.C. 270, 273, 126 F.2d 533, 536. I think the error was so plain and so prejudicial that we should notice it, pursuant to our authority under Rule 52(b) of the Federal Rules op Criminal Procedure, although it was not brought to the attention of the trial court.
. In saying “the testimony of these witnesses is in open and diametric conflict on several points”, the judge did not indicate which witnesses or which points he had in mind,

Passage view · GavelSight