Bimbo v. United States

Decision Date10 February 1936
Docket NumberNo. 6506.,6506.
Citation65 App. DC 246,82 F.2d 852
PartiesBIMBO v. UNITED STATES.
CourtU.S. Court of Appeals — District of Columbia Circuit

Nugent Dodds and Thomas E. Rhodes, both of Washington, D. C., for appellant.

Roger Robb, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

MARTIN, Chief Justice.

The appellant, Tene Bimbo, a Gypsy, was convicted and sentenced in the Supreme Court of the District of Columbia upon an indictment charging that on June 13, 1933, he did steal, take, and carry away the sum of $130 in money, the property of the Woodridge-Langdon Savings & Commercial Bank, a body corporate, located in the District of Columbia.

The defendant pleaded not guilty, and relied in part for his defense upon an alibi, claiming that he was not in the District of Columbia but in the city of New York at the time named in the indictment.

At the trial the government produced as a witness one Weckerly who testified in substance that he was the bank's teller at the time in question and was then on duty behind the counter at the bank, and that a man, a Gypsy, came into the bank with eight fifty-dollar bills and asked Weckerly for change for them. Weckerly had difficulty in understanding the man as he did not speak good English. Weckerly understood the man to ask for ten-dollar bills in change, and he counted out forty ten-dollar bills, counting them over twice, and pushed them out of the window of the cage on the counter towards the man. The man put his hands on them, having one hand on top of the bills and the other hand beneath the bills, and moved his hands back and forth with the bills between them. The man then shook his head and said he did not want the change that way. Weckerly could not understand him and the man asked him if he spoke Spanish. Weckerly replied that he did not. A Mr. McPhaul, a customer of the bank who was standing behind the man said he understood him to want fives and ones, and Weckerly then counted out $250 in fives and $150 in ones which he passed out to the man and the man handed back a sheaf of ten-dollar bills which Weckerly thought contained all the bills which he had originally given to the man; that Weckerly returned these bills to his till without counting them, and the man took the fives and ones and immediately left the bank; that the occurrence had been witnessed by Mr. Norris, conservator of the bank; that immediately after the man left the bank and at Mr. Norris' suggestion Weckerly counted the ten-dollar bills in his till, and instead of having about forty-five as he should have had, he had about thirty. Weckerly testified that after he had taken the forty ten-dollar bills out of his drawer he had four or five ten-dollar bills left in the drawer as best as he could tell, but after he returned the ten-dollar bills to his drawer and counted them he knew right away he did not get all the money back from the man, so he ran out of the bank but saw no sign of him.

On cross-examination Weckerly said that he remembered distinctly counting the forty ten-dollar bills twice before giving them to the man; that all the time the ten-dollar bills were on the counter they were in plain view; that the money was partly off the counter because the man had one hand on top of the bills and the other on the bottom of the bills, and it was taken part way off the counter. He testified that he did not count the forty ten-dollar bills when they came back to him because the transaction took but a "fraction of a minute" and he felt sure that all of the money was on the counter as he was watching it at the time. Weckerly said that he was short according to his records in the sum of $130; that when the man had his hands on the money he did "quite a bit of reversing them"; and that his movements were slow. Weckerly also testified that the defendant resembled the man who got the money, but that the man seemed to be taller than the defendant, and that he could not positively identify him; that he had failed to identify him when the defendant was first arrested in New York.

The government next produced as a witness Mr. Norris who was present at the time of this transaction and who testified that he looked into the cage and saw that Weckerly was "a little befuddled"; that he told Weckerly that the man was "trying to pull a fast one on him" and to be careful and that Weckerly said that he was and that he was sure that he was all right; that the man was in front of him and he called him back and asked him what he wanted with the change, and the man replied in broken English that he was a banana merchant from South America. The witness positively identified the defendant as the man who got the money.

The government then called Frank McPhaul who testified in substance that he was a railway postal clerk and on June 13, 1933, was in the Woodridge-Langdon Bank about noon to cash a personal check; that he went to the teller's window and Weckerly was in that cage; that a man ahead of the witness was getting change and evidently was undecided what he wanted and passed the money back and forth several times; that the man used the word "peso" and that the teller seemed to be confused so that the witness told the teller the man wanted dollar bills and the man bowed and thanked him for interpreting; that Mr. Norris came to the cage and asked the teller about the transaction; that the man was in front of the cage and the witness was right behind him and they were the only persons there at that time; that witness never saw the man afterwards until in a police line-up at the courthouse and he identified him at that time as the man who received the money from Weckerly at the time in question; that he had no doubt of his identity.

The government also called Norman A. Bell as a witness, who was a bookkeeper at the bank at the time of the transaction in question. He testified that at that time he was working in the cage next to that of Weckerly; that he heard some foreign language spoken in the lobby of the bank, which witness took to be Spanish; that witness had a smattering of Spanish at school and looked up and saw the man at the window; the witness looked up right away and gave his full attention to what was going on; that the witness heard the man say "cinco" and "diez," which in Spanish is five and ten; that witness thought he could help Weckerly in giving the man the change he wanted; that the money given at first was not the change the man wanted and in plainer English he told Weckerly he wanted twenties instead of what he got; that in the meantime the man was telling how much larger a bunch of bananas could be obtained at the same price in South America than in the United States; that after receiving the money to his satisfaction the man walked out of the bank; the witness testified that the defendant was the man who received the money. He was asked to leave the stand and place his hand on the shoulder of the defendant, whereupon he placed his hand on the shoulder of Steve Bimbo, the son of the defendant who sat beside the defendant at the trial table, both being in front of the witness stand. It was afterwards testified in rebuttal by witness William McEwan that at the time when Bell placed his hand upon the shoulder of the defendant's son, the defendant had his hand over his own face.

The defendant in support of his alibi asserted that he was in New York City the entire month of June, 1933, and was not at any time in that month present in the District of Columbia. It seems proper therefore at this point to add the testimony of two rebuttal witnesses who testified that they saw defe...

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    ...v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, decided under the former 28 U.S.C.A. § 391." See also Bimbo v. United States, 65 App.D.C. 246, 249, 82 F.2d 852, certiorari denied 297 U.S. 721, 56 S.Ct. 670, 80 L.Ed. 1006; Cromer v. United States, 78 U.S.App.D.C. 400, 142 F.2d 69......
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