Borum v. United States, 5323.

• Decision Date: 01 February 1932
• Docket Number: No. 5323.,5323.
• Parties: BORUM et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 4, 56 F.2d 301 (1932)

BORUM et al. v. UNITED STATES.

No. 5323.

Court of Appeals of District of Columbia.

Argued April 6, 1931.

Reargued October 5, 1931.

Decided February 1, 1932.

Peter P. Richardson, of Washington, D. C., for appellant Borum.

James A. O'Shea and John H. Burnett, both of Washington, D. C., for appellant Logan.

Leo A. Rover and William H. Collins, both of Washington, D. C., for the United States.

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

GRONER, Associate Justice.

Appellants, whom we shall call Borum, Logan, and Guy, were indicted and convicted of first degree murder. They were sentenced to be electrocuted. The record contains fifty-one assignments of error. The circumstances of the killing were these:

About midnight of April 12, a federal prohibition agent named York discovered an automobile equipped with a smoke screen parked in an alley known as Brooks court, located in the northwest section of Washington. The automobile had been used that evening to transport a load of whisky from Baltimore to Washington, but when the officer drove into the alley the whisky had been removed and there was no one in the car. The agent, realizing the impossibility of moving the car without help, blew the horn in an endeavor to attract police assistance. The noise of the horn caused a number of colored people living in the alley, including Guy, to assemble and watch the proceeding; but no one offered to assist the officer. After a short time, probably twenty to thirty minutes, Borum and Logan came into the alley and walked toward the agent and, when a few feet away, Borum drew a pistol and shot him to death. At the time of the shooting, Guy was in the alley apparently in friendly conversation with the officer. After the shooting Borum fled and Logan got into the car that the officer was seeking to arrest and drove it out of the alley. Guy went out of the alley and called a policeman and returned with him to the scene of the shooting. He was arrested that night. Logan and Borum were arrested later.

All three made statements with relation to the shooting. Guy declared he had nothing to do with it, and both he and Logan stated that Borum fired the shot which killed the agent. On the other hand, Borum charged that Guy did the shooting.

While there are more than fifty assignments of error, the one principally relied upon was the action of the court in permitting the statement made to the police by the defendant Borum to be read to the jury on the ground that it contained matter which was not germane to the crime charged in the indictment. This makes it necessary to notice the statement. In it Borum told the police that on the afternoon of the day of the shooting he and Logan, with the assistance of Guy, connected the smoke screen to the automobile, and this done, he and Logan drove from Washington to Baltimore to get a load of liquor; that when they reached Baltimore a police officer stopped them and threatened to arrest them for having a smoke screen; and that this officer and another officer were bought off for $20, which Logan paid to let them go, as a result of which they were able to return to Washington with the whisky. He also stated they made deliveries at some five or six places in Washington, and then went into the alley where the shooting occurred, intending to deliver the last of the liquor to Guy, who lived in a house at the far end; and that this delivery had just been accomplished when the officer appeared, whereupon they left the immediate neighborhood. The statement then continued with an account of the shooting, which Borum, as we have already seen, ascribed to Guy. When the government was about to introduce the statement of Borum, counsel for Logan objected to so much of it as implicated Logan in an "alleged bribery attempt in Baltimore" and an "alleged purchase and transportation of liquor from Baltimore," counsel stating: "I am objecting to that part of the statement that refers to anything not germane to the happening in the alley. I do not think that what happened in Maryland or any things that are suggested other than those things that happened in the alley should be admitted." Counsel for the other defendants joined in the objection, but the court permitted the statement to be fully read to the jury. We think there was no error in refusing to exclude that portion relating to the Baltimore trip and its incidents.

The case of Crawford v. United States, 59 App. D. C. 356, 41 F.(2d) 979, is urged as sustaining the position of the accused in their objection to this evidence. In that case evidence admitted by the trial court was held to have been improperly admitted on the ground that it placed the reputation of the defendant in issue in a matter not related to the commission of the crime on which he was being tried. So also in the case of Robinson v. United States, 57 App. D. C. 143, 18 F.(2d) 185, we held it error to allow a witness to testify that the defendant had been engaged in keeping a house of prostitution for six months preceding the time of the robbery, on the ground that the evidence reflected upon defendant's character, which had not been put in issue, and did not tend to prove the crime charged nor connect the defendant with it. We think it clear that neither of these cases is controlling here.

It is, of course, fundamental that distinct and different crimes independent of that charged may not be used to establish guilt, and it is equally fundamental that the prosecution may not show previous general bad character or reputation of an accused unless and until the accused has put his character and reputation in issue, but it is just as much true that even a collateral or extraneous offense, when it forms a link in a chain of circumstances culminating in the offense charged, may properly be shown in evidence, and it is, therefore, the universal rule that testimony connecting a defendant with a different crime than that charged is admissible if it is so related to or connected with the crime charged as to establish a common scheme or purpose so associated that proof of one tends to prove the other, which is to say that where the two crimes are so connected as to be part of a general scheme, the evidence is admissible. The ground on which such evidence is allowed is that both crimes are connected with a single purpose and in pursuance of a single object. In such cases proof of the first is admissible to show a motive for the second.

The admitted facts in the case under consideration bring it well within the exception to the general rule. By undisputed proof, indeed by the...