Eidson v. United States, 6179.

• Decision Date: 07 November 1959
• Docket Number: No. 6179.,6179.
• Citation: 272 F.2d 684
• Parties: Oma Roy EIDSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

272 F.2d 684 (1959)

Oma Roy EIDSON, Appellant, v. UNITED STATES of America, Appellee.

No. 6179.

United States Court of Appeals Tenth Circuit.

November 7, 1959.

Richard C. McLean, Broomfield, Colo., for appellant.

Robert S. Wham, Acting U. S. Atty. for Dist. of Colorado, Denver, Colo., for appellee.

Before BRATTON, PICKETT and LEWIS, Circuit Judges.

BRATTON, Circuit Judge.

This was a prosecution under the Federal Kidnaping Act, 18 U.S.C.A. § 1201. The indictment charged that at Durango, Colorado, the defendant, Oma Roy Eidson, unlawfully and feloniously seized, confined, inveigled, decoyed, kidnaped, abducted, and carried away a named female eleven years of age, hereinafter referred to as the victim, against her will; that the defendant held the victim for the purpose of taking indecent liberties with her person and of making an assault upon her; that having seized, confined, inveigled, decoyed, kidnaped, abducted, and carried away and held the victim, the defendant knowingly, wilfully, wrongfully, unlawfully, and feloniously transported and caused her to be transported in interstate commerce from Durango to a described point in New Mexico where she was liberated, not unharmed, in that the defendant, during the course of the transportation and prior to the liberation, assaulted, raped bruised, lacerated, harmed, and otherwise injured her. The defendant was found guilty and sentenced to imprisonment for a term of forty years.

The first ground of error urged for reversal of the judgment is that the testimony of the victim relating to an extra-judicial identification of appellant as the person who kidnaped her was not admissible and was highly prejudicial. Throughout the trial, there was no substantial controversy respecting the fact that the victim was kidnaped; that she was transported from Colorado into New Mexico; that she was ravished in New Mexico; and that she was liberated in New Mexico just before the sun went down. The question of fact controverted at the trial was whether appellant was the person who committed the offense. His defense was an alibi. After testifying that appellant was the person who committed the offense, and after testifying in detail concerning facts and circumstances preceding, attending, and following the commission of the offense, the victim was permitted to testify over the objection of appellant that on the next day after the commission of the offense, she saw appellant at a lineup at the police or sheriff's office in Aztec, New Mexico; that she recognized him as the person who had been with her the day before; that she recognized him by the looks on his face and a few words which he said; that he was number five from the left in the lineup; and that she told a special agent for the Federal Bureau of Investigation that number five was the man. The cases relating to the admissibility of evidence tending to establish extra-judicial identification of the accused are not harmonious. Conflicting views have been enunciated. This court has not heretofore had occasion to explore the question. It is said in the brief of appellant that People v. Jung Hing, 212 N.Y. 393, 106 N.E. 105, is the leading case holding that evidence of that kind is inadmissible. That case was a prosecution for murder. The defense was an alibi. Several witnesses at the trial identified the accused as the person who had fired the fatal shot; and some of them testified that on a certain occasion they identified him in a lineup at the police station. It was held that where no effort has been made in the course of the trial to discredit or impeach the testimony of a witness who identifies the accused, testimony of such witness that on a previous occasion at a lineup of that kind he identified the defendant is not admissible for the reason that it merely bolsters the present testimony by a self-serving act or performance. That case was followed in certain later cases decided by the courts in New York. People v. Malkin, 218 App.Div. 635, 219 N.Y.S. 1; People v. Hagedorny, 272 App.Div. 830, 70 N.Y.S.2d 511; People v. Conley, 275 App.Div. 743, 87 N.Y. S.2d 745; People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192, 133 N.E.2d 703. Apparently dissatisfied with the sweep of the rule, the legislature of that state in 1927 relaxed it by statute to the extent of permitting a witness to testify concerning a previous identification made by himself, but not allowing others to testify to it. People v. Cioffi, supra. Other cases have held that evidence tending to establish extra-judicial identification of the accused is not admissible. Blake v. State, 157 Md. 75, 145 A. 185; O'Toole v. State, 105 Wis. 18, 80 N.W. 915; Reddick v. State, 35 Tex.Cr.R. 463, 34 S.W. 274; Warren v. State, 103 Ark. 165, 146 S.W. 477; Thompson v. State, 223 Ind. 39, 58 N.E.2d 112; State v. Fleming, 354 Mo. 31, 188 S.W.2d 12; State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927; Johnson v. State, 44 Okl.Cr. 113, 279 P. 933; Alberty v. State, 68 Okl.Cr. 246, 97 P.2d 904; State v. Lanegan, 192 Or. 691, 236 P.2d 438. In some of the cases, the testimony was characterized as hearsay, in some as self-serving, and in some as extra-judicial identification without further specificity. But without taking up such cases one by one, it may be said that in most of them the testimony given relating to the identification was by a person other than the one making the identification, oftentimes a peace officer, or someone else. And in some of the cases photographs were used in the making of the identification.

In this case, the challenge is directed solely and exclusively to the testimony of the witness who had herself identified the accused prior to the trial. After she identified appellant in the courtroom, her testimony that she had identified him on the earlier occasion had reference to her own mental processes in reaching the conclusion at the time of such earlier identification that she then knew him to be the person who had committed the offense. It was merely a statement made by her while on the witness stand that as the result of her own natural senses at the time of the earlier identification she knew that he was the person who kidnaped, transported, and ravished her on the immediately preceding day. And it is the rule clearly expressed in a definitely established line of well-considered cases with which we are in accord that such testimony is proper and appropriate as establishing a circumstance for the consideration of the jury in determining the question of identity. Bolling v. United States, 4 Cir., 18 F.2d 863; United States v. Forzano, 2 Cir., 190 F.2d 687; State v. Egbert, 125 Iowa 443,...