Hall v. United States

• Citation: 83 US App. DC 166,168 F.2d 161
• Decision Date: 05 April 1948
• Docket Number: No. 9590.,9589,No. 9584,9584,9590.
• Parties: HALL v. UNITED STATES. GRAY v. SAME. HARRIS v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

83 US App. DC 166, 168 F.2d 161 (1948)

HALL v. UNITED STATES.

GRAY v. SAME.

HARRIS v. SAME.

Nos. 9584, 9589, No. 9590.

United States Court of Appeals District of Columbia.

Argued November 26, 1947.

Decided April 5, 1948.

Writ of Certiorari Denied June 14, 1948.

Mr. Curtis P. Mitchell, of Washington, D. C., for appellant in No. 9584.

Mr. James T. Wright, of Washington, D. C., with whom Mr. Wesley S. Williams, of Washington, D. C., was on the brief, for appellant in No. 9589.

Mr. Robert I. Miller, of Washington, D. C., for appellant in No. 9590.

Mr. Sidney S. Sachs, Asst. U. S. Atty., of Washington, D. C., with whom Messrs. George Morris Fay, U. S. Atty., John W. Fihelly, and Edward Molenof, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee.

Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate Justices.

Writ of Certiorari Denied June 14, 1948. See 68 S.Ct. 1509.

WILBUR K. MILLER, Associate Justice.

Henry McDowell's .38-calibre revolver was stolen from his residence in the District of Columbia during the daylight hours of Tuesday, March 11, 1947. When Preston Barnes was arrested for the theft a few days later, a story of murder began to unfold. With the revolver in his possession, Barnes had been in company on that Tuesday with the appellants Joe Gray and Shirley Harris. The weapon was turned over to Gray, who hid it under the mattress on his mother's bed. Eight bullets, which also had been stolen from McDowell, were handed to Harris, who took them to his home on W Street near 14th Street.

That evening about 9:00 o'clock the appellant Herbert Hall was calling on his friend Ida Brown. Harris appeared about 9:30. He and Hall left together and proceeded to Gray's home where Harris took charge of the revolver. Gray joined them and the three went on to the home of Harris, obtained the bullets, loaded the revolver, and discussed plans for the remainder of the evening. A suggestion that a store be robbed was discarded in favor of holding up some person on the street. With this in mind, they set out in search of a victim. Proceeding along 14th Street to Euclid, they turned into that street and, as they reached 13th Street, Harris stated they would rob the first man they saw "by themselves."

At the corner of 11th and Euclid Streets their search ended, for there they saw Frank C. Kelly, who had just attended a meeting at nearby Central High School, standing at a car stop on 11th Street. Hall paused near the corner to attend to a personal need, but Harris and Gray went on to the car stop. Threatening Kelly with the revolver, Harris commanded him to "Stick `em up." Hall was then half way across the street on his way to join his companions. Kelly turned to run but had taken only a few steps when Harris shot him in the back; he fell forward on his face, bleeding profusely, and died almost immediately. The three bandits fled and reassembled at Banneker playground, a few blocks from the scene of the shooting, where the unused bullets were extracted from the revolver, after which Hall disposed of both weapon and ammunition by dropping them in a sewer near the corner of 9th Street and Barry Place. By 10:30 p. m. Hall was back at the home of Ida Brown. He told her he had just seen a white man shot at 11th and Euclid Streets but that he had not done the shooting.

Gray was arrested Saturday afternoon, March 15, and the other two appellants were taken into custody early in the morning of Sunday, March 16. All three confessed to the police that afternoon and signed written statements. Hall accompanied police officers to 9th Street and Barry Place and pointed out the sewer where he had disposed of the revolver. Scientific tests showed that the bullet which killed Kelly, and which was taken from his throat, had been fired from the revolver which the police recovered from the sewer. The weapon was identified as being that which was stolen from McDowell and which had been handled during that day by Preston Barnes and the three appellants.

The appellants were jointly indicted for murdering Kelly in an attempt to rob him, which in this jurisdiction is murder in the first degree.¹ They were tried together and were found guilty by a jury in the District Court of the United States for the District of Columbia. This appeal is from the death sentence pronounced pursuant to that verdict.

The sole ground for reversal relied upon by Harris is that the trial court erred in receiving evidence of an offense other than that for which he was on trial, the reference being to evidence that the revolver was stolen from McDowell's home. The other two appellants make the same contention. The short answer to it is that there was no evidence to the effect that any one of the appellants had burglarized McDowell's residence and stolen his revolver. Preston Barnes admitted that he was being held for housebreaking and larceny, and Henry McDowell testified that his revolver was stolen on March 11. We see no room for an inference from that evidence that the appellants had committed burglary and larceny. To be sure, there was proof that the appellants had possession during the day of March 11 of the revolver which McDowell later identified as his own, but there was no intimation in the testimony that the appellants knew it had been stolen. Consequently, since there was no suggestion in the evidence that any appellant had stolen the revolver, or had received it knowing it to have been stolen, there was no evidence tending to charge them with, or prove them guilty of, an offense other than that for which they were on trial.

Hall and Gray assert that their motions for severance were improperly denied. It is the general rule that persons jointly indicted should be tried together, and granting separate trials is a matter of discretion. The mere fact that admissions have been made by one which are not evidence as against the others is not a conclusive ground for ordering the parties to be tried separately. Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225. Nothing in the present record indicates an abuse of discretion in ordering the appellants to be tried together. The court duly limited the effect of evidence introduced which was competent against one defendant and incompetent as to the others.

The appellants took the stand and testified that the confessions which had been introduced into evidence against them were extorted from them by brutal beatings. But Gray's attorney stated it to be his position that the written statements were true in the main, and under his questioning Gray said certain officers had struck him, but that the policeman to whom he confessed did not lay a hand on him, and it was that officer's kind treatment which impelled him to give correct answers. Harris and Hall told the jury their statements were extorted by physical mistreatment, and Hall now says that his statement was exculpatory only and not an admission. His testimony did not differ greatly from his written statement and was enough in our opinion to amount to a confession of guilt.

All the officers denied having mistreated the appellants in any manner, and photographs of Harris and Hall taken a few minutes after the confessions were signed did not reveal bruises of brutality which they claimed had been inflicted. Moreover, the testimony of witnesses, other than the officers, who saw the appellants at the jail was to the effect that they bore no marks of beatings and that none of them complained of mistreatment. In a carefully and accurately worded charge the trial judge submitted to the jury the question whether the confessions of Harris and Hall had been extorted by beatings or any other sort of coercion or influence. The verdict of guilty indicates that the jury did not believe their story of having been forced to confess.

It is argued by Hall and Gray that the court erred in refusing to grant a new trial because government counsel peremptorily challenged nineteen Negro members of the jury panel and so excluded Negroes from the jury. This, they say, violated their constitutional rights under the Fifth and Fourteenth Amendments. The Fourteenth Amendment is, of course, wholly inapplicable; but the due process clause of the Fifth Amendment would be invokable if the authorities charged with the duty of selecting jurors had systematically excluded Negroes from the panel.² The fact that nineteen members of that race were on the panel demonstrates that there was no such exclusion here. The requirements of due process were met when there was no racial discrimination in the selection of the veniremen. The government as a litigant was entitled to exercise twenty peremptory challenges, which means that its counsel could exclude from the jury that number of persons without assigning, or indeed without having, any reason for doing so. The Constitution does not require that the appellants, being Negroes, should be tried by a jury composed of or including members of that race.³ They legitimately sought to obtain the fancied advantage of having Negroes on the jury by using their peremptory challenges only against white members of the panel.

Although it is novel in this jurisdiction, the same contention concerning peremptory challenging of Negro jurors by the prosecution was presented to and rejected by the Supreme Court of Michigan in People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466, 473, certiorari denied, sub nom. Roxborough v. Michigan, 1944, 323 U.S. 749, 65 S.Ct. 80, 89 L.Ed. 600. The court pointed out that peremptory challenges are exercised by a party, not in the selection of jurors, but in rejection. The peremptory challenge is not aimed at disqualification, but is exercised on qualified jurors as a matter of favor to the challenger. If the appellants' theory were correct and were carried to its ultimate logical result, it would be a violation of the Constitution for any prosecuting attorney peremptorily to challenge a Negro juryman if...