Dirring v. United States

Decision Date25 February 1964
Docket Number6178.,No. 6177,6177
Citation328 F.2d 512
PartiesJohn T. DIRRING, Defendant, Appellant, v. UNITED STATES of America, Appellee (two cases).
CourtU.S. Court of Appeals — First Circuit

Philip W. Halloran, Boston, Mass., with whom Ernest W. Piper, Jr., Boston, Mass., was on brief, for appellant.

A. David Mazzone, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., and Murray H. Falk and Gordon A. Martin, Jr., Asst. U. S. Attys., were on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

A national bank in Avon, Massachusetts was robbed at 11:00 A.M. on February 1, 1963, by two masked men. The primary question on these appeals is whether there was sufficient evidence for the jury to find that one of them was defendant appellant. The cast of principal characters and list of properties are the following: Dirring, defendant appellant, known as "Tiny"; Gleason, convicted co-defendant, who does not appeal; Mrs. Lucas, in whose house lived an adult daughter and Gleason; Somma, under indictment with Gleason for another matter; Mrs. Somma; a Buick sedan, property of Dirring; a 1949 Dodge, bought in the latter part of January 1963 by Gleason for Mrs. Lucas; an Oldsmobile station wagon, stolen on January 28, 1963.

The evidence warranted finding the following. About two weeks prior to February 1, 1963 Gleason called at the Somma's house accompanied by two men, one of whom was referred to as "Tiny," and who was short, of heavy build, and wore glasses and a hearing aid.* Gleason asked Somma if he wanted to "drive a car on a score." It was not defined what this meant. Somma refused. On January 30, and again on January 31, a telephone call was made from Mrs. Lucas' house to a number in Boston. The latter was a pay phone registered in Dirring's name, and was installed in a wallpaper and paint shop which was his place of business. Neither Mrs. Lucas nor her daughter placed the call, or knew Dirring.

On the morning of February 1 Gleason had received Mrs. Lucas' permission to use the Dodge. Shortly prior to 11:00 A.M. all three cars were in a parking lot about two miles from the bank. At the time of the robbery the Oldsmobile (only) was absent. The Oldsmobile was with close approximation identified by bank witnesses as the "getaway" car. Soon after the robbery the Oldsmobile was back in the lot, but the Dodge and Buick were gone. Gleason arrived at the Somma house about 11:45 A.M., shortly after which Mrs. Somma observed the Dodge in the yard. Gleason told Mrs. Somma that if anyone asked to say he had been there since 10:30. Some days later he told Mrs. Somma that if he were blamed for the robbery he was going to implicate her husband.

Neither defendant testified. Dirring called three witnesses who placed him in Rhode Island the morning of the robbery. One of them, a garage mechanic, testified that Dirring brought him a car on the morning of February 1 to have Rhode Island plates installed, and produced a dated work ticket in confirmation. The records of the Rhode Island Registry of Motor Vehicles, however, disclosed that these plates had not been issued until February 6.

In the matter of identification the bank witnesses described one of the robbers as 5' 7" tall and weighing about 170 pounds and having a round face and eye glasses. This fitted Dirring so far as it went. The identification testimony which poses a special question is that of Mrs. Somma. Called by the government, on direct examination she testified that the man called Tiny who accompanied Gleason to her home in mid-January was not Dirring, the man present in the courtroom. The government then showed her a police, or "mug shot" photograph of Dirring, and she admitted having previously identified it as Gleason's companion. The court asked the witness, "Is the man who is in that photograph now in the courtroom?" to which she answered, "Yes." Subsequently she was asked "Is this a picture of the man that was at your home on that occasion?" to which the answer was, "Yes." The picture was then admitted. Thereafter, on cross-examination, the witness again stated that the defendant was not the man.

There are cases where a witness' final testimony on cross-examination wipes out his contradictory testimony on direct. Martin v. Boston Elevated Ry., 1928, 262 Mass. 542, 160 N.E. 300; cf. Reiss v. United States, 1 Cir., 1963, 324 F.2d 680, 685, cert. den. Jacobs v. United States, 84 S.Ct. 667. However, contradiction ordinarily leaves merely a question of fact, with the jury free to decide what to accept as the truth. Zimberg v. United States, 1 Cir., 1944, 142 F.2d 132, 136-137, cert. den. 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573; United States v. Bushwick Mills, Inc., 2 Cir., 1947, 165 F.2d 198, 203; Craig v. United States, 9 Cir., 1936, 81 F.2d 816, 828, cert. den. 298 U.S. 690, 56 S.Ct. 959, 80 L.Ed. 1408. In the light of the pressure this witness might have felt to testify in Dirring's behalf, we think the jury could properly draw an inference unfavorable to him from this total testimony.

Nor do we agree that it was error to allow the police photograph in evidence because it revealed that the defendant had been in prior difficulties. While this subject is frequently thought of in terms of the well-established exceptions, such as those relating to identity, design, or intent, see, e. g., Jarabo v. United States, 1 Cir., 1946, 158 F.2d 509, 513-514, the principle seems better described (although again it is not free from exception) from the obverse standpoint. "Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime." United States v. Stirone, 3 Cir., 1958, 262 F.2d 571, 576, rev'd on other gr'ds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; see McCormick, Evidence, § 157 (1954); cf. Uniform Rules of Evidence, 55, 47 (1954). As we said in Green v. United States, 1 Cir., 1949, 176 F.2d 541, 543, "Testimony otherwise relevant is not rendered inadmissible merely because its tendency to prove the commission of some other crime." The photograph in question had independent relevancy, not possible to...

To continue reading

Request your trial
114 cases
  • United States v. Hayes, Crim. No. 79-190.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 14 Junio 1979
    ...Cueto, 515 F.2d 160, 162 (1st Cir., 1975); United States v. Currier, 454 F.2d 835, 838 (1st Cir., 1972); Dirring v. United States, 328 F.2d 512, 515 (1st Cir., 1964). See also Parker v. United States, 378 F.2d 641, 644-45 (1st Cir., 1967). The trier of fact is free to choose among various r......
  • Nevels v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 19 Agosto 2021
    ...States v. Atnip , 374 F.2d 720, 722 (7th Cir. 1967) ; Wood v. United States , 361 F.2d 802, 806 (8th Cir. 1966) ; Dirring v. United States , 328 F.2d 512, 515 (1st Cir. 1964) ; Strangway v. United States , 312 F.2d 283, 285 (9th Cir.1963) ; Hunt v. United States , 316 F.2d 652, 654 (D.C. Ci......
  • United States v. Nelson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 20 Noviembre 1969
    ......But in Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967), we reversed a conviction because, in our view, two equally valid inferences from the evidence were possible and the jury failed to draw the inference favoring the defendant. .          18 E. g., Dirring v. United States, 328 F.2d 512, 515 (1st Cir. 1965); United States v. Press, 336 F.2d 1003, 1010 (2d Cir. 1964); United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959); United States v. Allard, 240 F.2d 840, 841 (3d Cir. 1957); White v. United States, 279 F.2d 740, 748 (4th Cir. 1960); United ......
  • United States v. Woods, 72-2217.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 12 Septiembre 1973
    ...probably be roused by the evidence to overmastering hostility. Id. p. 453. This approach is one which finds support in Dirring v. United States, 328 F.2d 512 (1 Cir. 1964), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964); and United States v. Hines, 470 F.2d 225 (3 Cir. 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT