George v. United States, 8037.

Decision Date09 February 1942
Docket NumberNo. 8037.,8037.
Citation75 US App. DC 197,125 F.2d 559
PartiesGEORGE v. UNITED STATES.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Robert I. Miller, of Washington, D. C., for appellant.

Mr. Dennis McCarthy, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, and Mr. Charles B. Murray, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and STEPHENS and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

The appellant, hereinafter referred to as the defendant, and Stephen T. Povich were jointly indicted for a robbery charged to have been committed upon Howard Edwards in the District of Columbia on April 10, 1941. The defendant was separately tried, found guilty by a jury, and sentenced to imprisonment for one and one-half to four and one-half years in the penitentiary. He moved for a new trial, but this motion was overruled. This appeal was then taken. The charge against Povich was disposed of without trial. The errors urged by the defendant in his brief on appeal concern the admission of certain evidence, the refusal of a requested instruction, and the refusal to grant a directed verdict because of asserted lack of proof of venue. They will be particularized below.

The bill of exceptions shows the evidence to have been as follows: Howard Edwards testified that: At 4:50 a. m. on April 10, 1941, while he was on duty as manager of the "Federal Gas Station, located at 7th and Main Avenue, Southwest," a strange white man, who was not the defendant, entered the office, indicated that he wished to use the rest room, then pulled and pointed a revolver, saying "This is a stick-up," forced him into the ladies' rest room, took $30 from his pocket and took his change carrier, and then closed the door to the rest room — leaving him inside. Shortly thereafter he heard someone say "Drop that gun," and then heard several shots. He then came out of the rest room and saw a policeman chasing the man who had thus held him up.

John L. Sullivan testified that: He was "a member of the Metropolitan Police Force and was attached to Precinct No. 4, . . . there had been a series of hold-ups at the Federal Gas Station, located at 7th and Maine Avenue, Southwest . . . he was assigned to patrol the Gas Station in the event of another hold-up . . .." At about 4:50 a. m. on April 10, 1941, he was in the men's rest room of the Station with the door but partly closed. He saw a strange white man come into the Station, point a pistol at Edwards, heard him say "This is a stick-up," saw him back Edwards into the ladies' rest room and take money from him. He (Sullivan) came out of the men's rest room, ordered the man to halt and drop his gun, but instead the man ran; again he ordered him to halt, and shot at him, but the man ran down the street to where an Airflow Chrysler four-door sedan was waiting by the curb, called out "Wait, don't leave me" — the car having begun to move — and then got in and drove off. Several shots were fired at him (Sullivan) from the car.

Detective Sergeant Thompson testified that: "He was a member of the Robbery Squad of the Metropolitan Police Department; . . . on the early morning of April 10, 1941, he received a report of a robbery at the Federal Gas Station at 7th and Maine Avenue, Southwest; . . . on information received, he arrested the defendant, Paul S. George, at the Pennyland Arcade on 9th Street." Thompson then identified the defendant as the same Paul S. George that he had thus arrested, and also identified a typewritten statement as having been taken from and signed by the defendant at detective headquarters shortly after his arrest. He testified that the statements contained in it were made freely and voluntarily, without threats, force or compulsion of any kind. There was no evidence to the effect that the statement was not voluntary, and the same was introduced in evidence. It was in terms as follows:

OFFICE OF THE ROBBERY SQUAD METROPOLITAN POLICE DEPARTMENT Washington, D. C Thursday, April 10, 1941: 2:06 PM (Date) To Paul Simpson George, white, 29 years 204 E St., N. W. By Det. Sgt. E. F. Lewis "You are held in connection with The holdup and robbery of Howard Edwards, Mgr. at Federal Gas Station at 7th and Maine Ave., S. W., about 4:50 AM this date, April 10, 1941, with a reported loss of $15.00

"You are now requested to make a full and complete statement of the facts of this case, as you know them. First, however, you are advised that you are not compelled to make a statement, and so are making it of your own free will, without force being used against you, and without your being promised any favor or consideration. You are advised that the statement will be used in court at your trial, if needed. Understanding this, are you willing to make a statement?"

Answer: "Yes sir."

STATEMENT:

"I met Teddy Patrick about 1:40 AM this morning in front of Jimmy Lake's on 9th Street. He had his car, an Airflow Chrysler. We picked up his girl friend, Helen Lord, a singer at Jimmy Lake's, and we went to her house about the 5000 block of Kansas Ave., N. W. We left her there. We took Mary Ash, 1200 block of 12th St., N. W., home, before we dropped his girl. We left Helen Lord out somewhere around 2:30 AM. Then we came back down to Thompson's Restaurant at 9th and E; we didn't get out of the car, just rode by. We rode around about an hour; then we drove down to 7th and Maine Ave., S. W., and he parked the car there around 7th and K, near this Federal Gas Station. I stayed in the car, and Teddy got out. He disappeared, and was gone about ten minutes. I heard one or two shots, and he come running up the street. I picked him up. He had run past the car, with the guy shooting at him. He got in and said he was shot. I carried him home, 1303 N St., N. W. I helped him get into his room. I stayed with him about a half hour. He told me to go to 1446 N Street and tell "Jeep" that he wanted to see him. Jeep came to the door when I knocked, and I told them Teddy was shot. Some little short fellow went back up to Teddy's with me. I went out then and called a doctor, I don't know his name, but I think it was Republic 6100. I called from Goodacre's at 14th and P, about 6:30 AM. I went back to Teddy's, stayed about ten minutes, and left before the doctor got there. I come down on 9th Street, about 7:30 or 8:00, to Charlie Griffin's barber shop. I went to Joe Law's room, at 709 D St. N. W., and slept a few hours, 2nd floor.

QUESTIONS:

Q — I now show you a photo of Stephen Povich. Is this the man you know as Teddy Patrick? A — Yes, that's the man.

Q — Is he the man who was on this holdup this morning, and who was shot? A — Yes.

Q — How much of the money did you get in this robbery? A — None.

Q — Who suggested this holdup? A — He suggested it; he asked me to drive the car. He told me where to drive to, and instructed me to park and wait for him. He told me to keep the motor running.

Q — Did he have a gun when he left you? A — I didn't see one when he left me, but he had one in his hand when he came back.

Q — I now show you a .32 cal. S & W revolver, nickel plated, #460444; is this the gun that Patrick had? A — It was a nickel plated gun; this looks like it.

Q — Did you see him when he fired at the police officer? A — No.

Q — How many shots did you hear fired? A — Either one or two.

Q — You knew when you parked this car to wait for Patrick that he intended to hold up this gas station? A — Yes, he said he was going in there.

Q — How long have you known Patrick? A — About a month.

Q — How did you come to meet Teddy at 2 AM this morning? A — I happened to be there on 9th St. with my girl, and he saw us and said he would take us home.

Q — How many times have you accompanied Patrick while he was taking Helen Lord home? A — At least three times.

Q — Under what circumstances did you first meet Teddy Patrick? A — I believe that it was in the Pennyland, where I occasionally work.

Q — Who took the tags off this car before going on this holdup this morning? A — I don't know that they were off; I believe they were still on the car.

Q — When was the matter of holding up this gas station first mentioned between you? A — As we came down 9th Street he said, "Let's go down in Southwest." So he drove on down in Southwest. He said, as we drove along, "I'm going down here and hold up a gas station." He drove around this gas station, Federal Gas Station, and asked me where the man was. I said I didn't see anyone. He then parked the car, and he got out and told me to get under the wheel and wait for him.

Q — When he left you in the car, did you know that he was going to holdup this gas station? A — Yes. When he left me, he told me to get under the wheel and be ready to drive when he got back, and to keep the motor running. When he came back, he ran by the car, and I drove up to him and picked him up.

Q — Do you want to add anything to your statement? A — No.

Q — Can you read and write? A — Yes sir.

(Signed) PAUL S. GEORGE

Typed by C. C. Richardson, clerk, Detective Bureau, in presence of Lieutenants Winfree and Thomas and Det. Sgts. Lewis, E. E. Thompson, and J. J. Tolson. Ralph Mitchell was in the room during part of the questioning.

Wit:

(Signed) Det. Sgt. E. E. THOMPSON

The foregoing constituted the Government's case. No evidence was introduced for the defendant.

1. Error is assigned upon the admission of testimony of conversations out of the presence of the defendant. In his brief on appeal the defendant urges that the trial court erred in the admission of the testimony of Officer Sullivan that there had been a series of hold-ups at the Federal Gas Station and that he was assigned to patrol that Station in the event of another. The contention apparently is that this statement by the officer was not one made of his own knowledge but upon...

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