Accardo v. United States, 13691.

• Decision Date: 25 October 1957
• Docket Number: No. 13691.,13691.
• Citation: 102 US App. DC 4,249 F.2d 519
• Parties: Anthony M. ACCARDO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

102 US App. DC 4, 249 F.2d 519 (1957)

Anthony M. ACCARDO, Appellant, v. UNITED STATES of America, Appellee.

No. 13691.

United States Court of Appeals District of Columbia Circuit.

Argued June 20, 1957.

Decided October 25, 1957.

Petition for Rehearing Denied December 4, 1957.

Mr. Gerald G. Schulsinger, Washington, D. C. (appointed by this Court), for appellant.

Mr. Harry T. Alexander, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.

PER CURIAM.

The appeal is from a judgment of conviction of attempt to commit robbery, in violation of section 22-2902, D.C.Code (1951). The incidents which led to the indictment occurred at a gasoline station owned and operated by the principal witness for the prosecution. Since the defendant did not take the stand, the case turned from a factual standpoint upon the credence the jury would give to the testimony of the principal prosecution witness. While his testimony was not corroborated we think it adequately supports the verdict and that this is so notwithstanding the circumstance that the intent to rob, an essential element of the offense charged, could only be inferred. The witness could have been under no delusion as to his visitor's intent when, as he testified, he "looked up and into the muzzle of an automatic pistol."

It is contended that remarks of the prosecuting attorney in his summation to the jury were improper and prejudicial. No objection to the remarks was made, and so we do not consider the point except to say that it is not of a character, in the context of the case as a whole, which requires us to pass upon it in our discretion to consider trial questions not raised in the District Court. Lawson v. United States, 101 U.S.App.D.C. 332, 248 F.2d 654, and cases cited. Nor are other errors urged for the first time in this court ground for reversal.¹

Affirmed.

BAZELON, Circuit Judge (dissenting).

The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, "Now, you go over and unlock that door. I'm coming in." The complainant, instead of complying with that order locked himself in the washroom and, from the window of that room, summoned help. The gunman fled. The complainant further testified that appellant was the man in question and that he had identified appellant as the offender at a police line-up 34 days after the offense.

Appellant contends that he was entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery. I think this point is well taken.

In my view the evidence may well be sufficient to sustain a conviction of assault with a dangerous weapon, D.C. Code, § 22-502. Appellant was convicted, however, of an attempt to commit robbery. To sustain a conviction of that crime, "it must be shown that the accused intended to commit that particular crime." Clark & Marshall, Crimes 79 (5th ed. 1952). The only evidence relied on to prove the necessary intent is the fact that he demanded entry at the point of a gun.

It could have been inferred from the evidence, as the Government argues, that appellant's intent in demanding entry into the gas station was to commit robbery. But it could also have been inferred that his intent was something else. The Government says it is unlikely that his purpose was to commit homicide or mayhem because he could have committed those crimes by shooting through the window. Obviously he could also have robbed the complainant without entering the premises, simply by demanding money at the point of his gun. The Government says a finding that appellant's purpose was anything other than robbery would have to be based upon conjecture and speculation because there was no evidence of any other purpose. But neither was there evidence that the purpose was to rob. What the argument for affirmance comes to, then, is that, though several different intents could possibly be inferred from the circumstances, the inference that the intent was to rob is, in the light of common experience, more probable than any other. But proof beyond a reasonable doubt, while it does not mean proof to a certainty, does mean proof beyond a mere probability. Since every element of a criminal charge must be proven by the prosecution beyond a reasonable doubt, proof that the necessary specific intent is merely more probable than any other is insufficient to sustain a conviction. Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, certiorari denied, 1947, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850; Cooper v. United States, 1954, 94 U.S.App.D.C. 343, 218 F.2d 39; Scott v. United States, 1956, 98 U.S.App.D.C. 105, 232 F.2d 362.

For its contention that the evidence here was sufficient to permit a conclusion beyond a reasonable doubt that appellant intended to rob, the Government relies on United States v. Baker, D.C.S.D.Cal. 1955, 129 F.Supp. 684; People v. Sameniego, 1931, 118 Cal.App. 165, 4 P.2d 809, 5 P.2d 653; People v. Moran, 1912, 18 Cal.App. 209, 122 P. 969; Holbrook v. State, 1927, 37 Ga.App. 106, 138 S.E. 919; and Steadman v. State, 1888, 81 Ga. 736, 8 S.E. 420. None of these authorities support the Government's position. In Baker the issue was whether the circumstances showed the element of intimidation, intent being admitted. In Moran, as well, intent was not in question, the issue being whether the evidence proved an attempt rather than mere preparation. The court held that "when one of the defendants pushed open the...