Gill v. United States

• Decision Date: 05 January 1961
• Docket Number: No. 18410.,18410.
• Parties: Bobby Ray GILL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

285 F.2d 711 (1961)

Bobby Ray GILL, Appellant, v. UNITED STATES of America, Appellee.

No. 18410.

United States Court of Appeals Fifth Circuit.

January 5, 1961.

M. A. Marsal, Mobile, Ala., for appellant.

Ralph Kennamer, U. S. Atty., Mobile, Ala., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

Bobby Ray Gill was convicted of armed robbery of a bank in Sweet Water, Alabama, in violation of 18 U.S.C.A. § 2113.¹ Two codefendants pleaded guilty and were sentenced before Gill's trial. The trial turned on the ability of the Government to identify Gill as one of the robbers; in fact, the ringleader. On appeal, Gill contends that the trial judge erred: (1) in allowing the Government to impeach its own witnesses by asking leading questions; (2) in allowing the Government to introduce irrelevant prejudicial evidence that the defendant gave a worthless check before the robbery; (3) in admitting a newspaper photograph of the defendant containing printed matter that was hearsay. We find no reversible error, and affirm the judgment below.

The appellant's first contention telescopes two different objections. The rule against impeaching one's own witness has no necessary relation to the rule against asking leading questions. "Leading questions do not impeach. The subject matter may impeach; but the form of the question cannot convert a non-impeaching fact into an impeaching fact." 3 Wigmore on Evidence, § 915(2) p. 430. We find from the record that the so-called impeaching questions related to earlier statements the witnesses made to government investigators.² In each instance of alleged impeachment the witness was clearly evasive in his answers. Some reasonable latitude must be allowed the prosecuting attorney in refreshing a witness' recollection, particularly in dealing with a reluctant, if not necessarily hostile, witness. "Leading a witness is certainly not good practice, but the trial court has a reasonable discretion to permit leading questions." Azcona v. United States, 5 Cir., 1958, 257 F.2d 462, 466, 467. The three questions quoted in the footnotes related to secondary proof of the defendant's guilt. On the question of the identification of Gill: the bank employees identified Gill positively as one of the men who held the pistol during the robbery;³ the description of the pistol, by one of the bank employees, was a complete description of the pistol found on Gill at the time of his arrest;⁴ the automobile used in the robbery was the same automobile repaired for Gill five days before the robbery, and the same automobile in which the third robber picked up the codefendants, hitching a ride, the day before the robbery;⁵ one of the codefendants identified Gill as the man who picked them up and talked them into robbing the bank; the other codefendant said that Gill "resembled" the man, but "I don't say it is and I don't say it ain't." After reading the record carefully, we cannot say the leading questions were so prejudicial as to affect the defendant's substantial rights. Rule 52, F.R.Crim.P., 18 U.S. C.A.

Second, the appellant contends that the testimony of the Government's witness, William A. Knight, was irrelevant and prejudicial. Knight testified that October 3, 1959, ten days prior to the robbery, Gill gave him a worthless check for ten dollars at Knight's grocery store in Montgomery. The testimony was relevant. Its purpose was to show Gill's straitened...