United States v. Dressler

• Citation: 112 F.2d 972
• Decision Date: 28 May 1940
• Docket Number: No. 7171.,7171.
• Parties: UNITED STATES v. DRESSLER.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

112 F.2d 972 (1940)

UNITED STATES v. DRESSLER.

No. 7171.

Circuit Court of Appeals, Seventh Circuit.

May 28, 1940.

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Donald D. Rogers, Sarah S. Sandor, and Michael V. Ostrowski, all of Chicago, Ill., for appellant.

William J. Campbell, and A. Bradley Eben, both of Chicago, Ill., for appellee.

Before EVANS, MAJOR, and TREANOR, Circuit Judges.

TREANOR, Circuit Judge.

Defendant-appellant was prosecuted upon an indictment charging him with kidnaping, seizing and abducting one Billy S. Hamilton in violation of Sections 408a and 408b of Title 18 U.S.C.A. The jury returned a verdict of guilty and the District Court, in accordance with the recommendation of the jury, imposed a sentence of death by electrocution. From the judgment of conviction and sentence the defendant has appealed to this court.

For sometime prior to July 11, 1939, defendant had been confined in the Oklahoma State Penitentiary at McAlister, Oklahoma. On the foregoing date he succeeded in escaping from prison. In the course of his escape he obtained a gun from a prison guard. He compelled one Brown to drive him from McAlister into Missouri and then into Kansas. At his order the driver stopped at a point near Pittsburg, Kansas, where the defendant was picked up by Hamilton. Defendant compelled Hamilton to drive him from place to place until they finally arrived at Maywood, Illinois. On July 14, 1939, defendant and Hamilton parked at a point outside of Ringwood, McHenry County, Illinois. Here they went to sleep in the car, defendant sitting in the driver's seat. According to the defendant's story he had placed the gun under his legs, and during the night was awakened by an effort of Hamilton to remove the gun and escape from the automobile. Defendant's confession stated that Hamilton had seized hold of the barrel of the gun and defendant seized the stock and the gun was discharged and Hamilton was killed. Later the body of Hamilton was found where the defendant had placed it and shortly thereafter defendant was apprehended and returned to the penitentiary in McAlister, Oklahoma.

The act creating the offense with which defendant was charged makes the crime punishable by death "if the verdict of the jury shall so recommend"; and no sentence of death may be imposed by the court without the jury's recommendation.

The grounds for reversal urged here are as follows:

1. The act is unconstitutional.

2. The indictment is void and should have been quashed.

3. Exclusion of material evidence.

4. The jury was permitted to consider improper prejudicial evidence.

We shall not re-examine the decision of this Court in Seadlund v. United States.¹ We see no reason for questioning the correctness of that decision which upheld the constitutionality of the act.

Defendant urges that the indictment is insufficient to state the offense defined by the act for the reason that the indictment does not allege that he was held "for ransom or reward" and does not allege a holding for any particular purpose within the meaning of the phrase "or otherwise." By the terms of the act the victim must be held "for ransom or reward or otherwise." The indictment alleges that the defendant kidnaped Hamilton for the purpose of holding Hamilton, taking possession and control of his automobile, providing defendant with a means of transportation, aiding defendant to escape from an official of Oklahoma, and taking Hamilton's car by intimidation. In Gooch v. United States² it was held that the act applied to the holding of an officer to avoid arrest. We are of the opinion that the indictment sufficiently alleges that the victim was held for a purpose within the meaning of the phrase "or otherwise."

We see no substance in defendant's contention that the indictment was defective for the reason that it alleged the offense to be "against the peace and dignity of the United States", etc., as distinguished from "against the peace and dignity of the United States of America."

Defendant claims that the District Court erred in excluding as evidence certain letters written by defendant's wife to defendant. An examination of the record discloses that the letters were not offered in evidence and hence could not have been excluded by the District Court. We assume from the discussion in defendant's brief and from the oral argument that the purpose of offering the letters was to throw light on the mental condition of the defendant in connection with the claim that he was temporarily insane. But it appears that the foundation laid for the introduction of the letters as exhibits was that the cessation of letters from his wife had had a disturbing effect upon defendant. It does not appear that defendant was seeking to prove by the letters that the contents thereof were such as to disturb his mental condition. Consequently, it would not have been error for the trial court to have excluded the letters even if defendant had made a proper offer.

The only serious question presented for our consideration arises out of the admission in evidence of two cards which carried fingerprints of the defendant. One contention of defendant is that the jury was not qualified to make comparison of fingerprints and that only testimony of experts should have been relied upon. It is unquestioned that the fingerprints on the cards were the fingerprints of the defendant, and the prosecution produced experts who testified that certain fingerprints found on Hamilton's automobile were the same as the fingerprints on the cards. The cards were passed to the jury, and the members were permitted to inspect the fingerprints. We do not think that it was error to allow the members of the jury to compare alleged fingerprints of the defendant with fingerprints which are admittedly fingerprints of the defendant after experts have compared them in the presence of the jury and have testified that they correspond.

But a most serious problem was created by reason of the fact that on the backs of the fingerprint cards there was prejudicial information in the form of the "criminal history" of defendant which was obviously incompetent as evidence and which could not have been introduced as such.

The exhibits in question, Government exhibits 49 and 51, were identified and offered solely as fingerprints; and were admitted in evidence as fingerprints. Defendant objected to the introduction of the exhibits but it is not clear that the objection was directed to the matter on the reverse sides of the cards. The Government contends (1) that there was no objection and, consequently, that no question in respect thereto was saved; and (2) that the information was not prejudicial.

We agree with the Government that the record does not show any objection to the exhibits except in respect to their character as fingerprint exhibits. But the facts are such that we are of the opinion that we must consider defendant's contention. Government counsel, during oral argument, stated that at the time of the offering of the exhibits he was unaware of the presence of the matter on the reverse sides of the cards and that if he had known of it he would not have offered the exhibits in evidence. It is not questioned that defendant's counsel and the trial judge were ignorant of the existence of any matter on the reverse sides of the cards.

In general, it is the duty of counsel to examine proffered exhibits for the purpose of informing himself of the contents and nature of the exhibits. But in the instant case defendant's counsel justifiably assumed that the exhibits were what they appeared to be, and what the Government counsel stated them to be, — merely cards carrying fingerprints of the defendant. The Government must assume responsibility for the mistake since the exhibits were offered by the Government, had been in the custody and actual possession of the Government and, as between the defendant and the Government, the Government must be charged with knowledge of the presence of the "criminal history" on the reverse sides of the exhibits. And in fairness to Government counsel it should be said that he assumed responsibility for overlooking the "criminal history."

The exhibits were sent to the jury room with the jury for use in its deliberations and without any knowledge on the part of the jury that the "criminal history" was improperly before it. Apparently neither Government counsel nor counsel for defendant discovered the fact that the cards carried the prejudicial matter until after the jury had returned its verdict. But following the verdict and before pronouncement of judgment defendant filed a motion to have the verdict set aside and a new trial granted.

In United States v. Atkinson³ it was stated: "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings."

In this case the defendant called the District Court's attention to the unfortunate situation as soon as he acquired knowledge of it; and on appeal has presented the question to us.

In his motion for a new trial the defendant urged upon the court, as grounds for setting aside the verdict, that he had been denied a fair and impartial trial and had been substantially prejudiced by reason of the fact that the fingerprint exhibits had brought to the attention of the jury "incompetent, irrelevant, immaterial, prejudicial and inflammatory statements indicating that the defendant had been arrested for, but not convicted of, the offense of rape and other offenses"; and defendant further urged that "evidence of such arrests was wholly and utterly incompetent and gravely prejudicial; and that the said informal memoranda did not, in any event, constitute competent or proper evidence even of the fact of such supposed arrests, but...