United States v. Magee, 12360.

Decision Date19 December 1958
Docket NumberNo. 12360.,12360.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Christopher Lyman MAGEE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Richard E. Gorman, Chicago, Ill., Floyd O. Jellison, South Bend, Ind., for appellant.

Hugh A. Henry, Jr., Asst. U. S. Atty., South Bend, Ind., Kenneth C. Raub, Asst. U. S. Atty., Hammond, Ind., Hugh A. Henry, Jr., Asst. U. S. Atty., South Bend, Ind., Martin H. Kinney, Asst. U. S. Atty., Hammond, Ind., for appellee.

Before SCHNACKENBERG, HASTINGS and KNOCH, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Charged by indictment with violations of 18 U.S.C.A. § 2113(a) and (d), defendant was found guilty by a jury, and was, by judgment of the district court, sentenced to imprisonment, from which judgment he has appealed.

The evidence showed that a man held up the National Bank and Trust Company of South Bend, Lincolnway West Branch (herein sometimes called the South Bend bank) on January 15, 1957. There is no contradiction of this fact nor as to the manner in which the holdup was perpetrated. Several witnesses for the government testified that they had seen the robber and that defendant was that person, although they admitted some inconsistencies between their testimony and the original description of the robber which they had given to the Federal Bureau of Investigation immediately after the commission of the crime.

At this point in the government's case, it produced Robert W. Havely and Carol Sullivan, who were permitted, over repeated objections by defense counsel, to testify to facts, which we now summarize.

Havely, office manager of the Reserve Savings and Loan Association, located in Cicero, Illinois, testified that on June 13, 1955, he talked with a man who said he was in a partnership involving a patent for a burglary alarm and that Havely's organization might be interested financially. As the man sat at Havely's desk he withdrew from his umbrella and raincoat a gun which he shoved in the direction of Havely. Havely suggested that they "go in the back room to sign some papers." Havely and the man proceeded into the back room, where the man got behind one of the cages and demanded that Havely hand him the money. Havely handed the man $1500 out of a drawer and out of a safe an additional $1000. He then led the man down into the basement and the man "walked out of the bank."

Havely in the courtroom identified defendant as the man who robbed the Association on June 13, 1955.

Miss Sullivan testified that on August 13, 1956, she was employed as a cashier for the same building and loan association in Cicero, Illinois. Two men walked into that establishment on that date. One of them, whom she identified as the defendant herein, pointed a gun at her. Her testimony proceeded as follows:

"A. He was leaning over the counter pointing the gun at us.
"Q. At whom? A. Well, Mrs. Foster was back with me at the time.
"Q. Was she there when these men walked in the door? A. No, she was sitting at her desk.
"Q. And when did she come around behind the counter at your cage? A. Well, just at the time they pointed the guns at us. She was instructed to come back behind the counter.
"Q. Did either of these two men say anything to you, or say anything to this other teller, in your presence there at that time?
* * * * * *
"A. The defendant told Mrs. Foster to get back. She was sitting at the desk and he told her to get back or they would blow her brains out. He directed both of us to get the money out of the safe, and Mrs. Foster said she don\'t know how, and I said I would, don\'t hurt us, and the men in the meantime, the tall, thin man, had come to where we were, and I stooped down at the safe and took the money out of the safe and handed it to him. The defendant said get the money out of the drawer and I gave the money out of the drawer and he said, there is another drawer, and in the meantime the first man was rifling the other drawer which had no money, and I said here, the money is down to another drawer. And it was American Express money order drawers. (Italics supplied.)
"Q. Do you know how much money you gave to these men there at the time? A. Well, approximately about 4 or 5 hundred.
"Q. How do you know that? A. We took an audit."

Defendant's counsel moved for a mistrial, because of the irrelevancy of the testimony of Havely and Miss Sullivan. The motion was overruled.

The court gave the jury the following instruction:

"With relation to the testimony of Robert W. Havely and Miss Carol Sullivan, employees of a Savings and Loan Association of Cicero, Illinois, the Court instructs you that the use of their testimony should be confined entirely to the question of the identity of the defendant as it relates to the crime which is charged in the present Indictment.
"Even if you find that the defendant had committed any other crime or crimes and violations of the law, he is not on trial for those, but you may take the testimony of Mr. Havely and Miss Sullivan with what credibility you give him and her, and determine whether or not this testimony throws any light upon the question of identity of the defendant as charged in the Counts of the present Indictment, that is, the robbery of the Lincolnway West Branch of the National Bank and Trust Company of South Bend on January 15, 1957."

In its brief in this court, government counsel admit that if evidence of similar crimes by the defendant was erroneously admitted, the defendant is entitled to a new trial.

It is of some significance that the government's attempt to justify the court's admission of the evidence of the Cicero holdups is confined to only slightly more than two pages of its brief. In stating its reason for introducing the evidence of Havely and Miss Sullivan, the government contents itself with this brief sentence:

"The testimony of Robert W. Havely and Carol Sullivan showed the ease of identification under circumstances similar to those surrounding the identification of the defendant by the Government witnesses. * * *" (Italics supplied.)

Government counsel cite no case to support this "ease of identification" test, which apparently originates with them.

It should be noted that neither of these witnesses was present on the occasion of the South Bend holdup, which took place about one year and eight months after the first Cicero holdup and about five months after the second Cicero holdup.

Upon oral argument, government counsel, in seeking to justify the admission of this evidence, asserted that they relied on the similar nature of the offenses, pointing out, first, that, while one victim was a building and loan association and the other was a bank, they were both in counsel's words, "financial institutions", and, second, the holdups were initiated by the robber's talking to an officer about some contemplated business transaction. However, as to the second holdup at Cicero, there was no conversation by either robber with anyone connected with the association in regard to any business transaction. Miss Sullivan...

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    ...v. Smith, 283 F.2d 760 (2d Cir. 1960) (dicta), cert. denied, 365 U.S. 851, 81 S.Ct. 815, 5 L.Ed.2d 815 (1961); cf. United States v. Magee, 261 F.2d 609 (7th Cir. 1958). The late Professor McCormick sharply criticizes the mechanical approach and cites a number of state cases, in support of t......
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