Harris v. United States, 5101.

• Decision Date: 02 June 1930
• Docket Number: No. 5101.,5101.
• Citation: 41 F.2d 976,59 App. DC 353
• Parties: HARRIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 353, 41 F.2d 976 (1930)

HARRIS et al. v. UNITED STATES.

No. 5101.

Court of Appeals of District of Columbia.

Argued April 8, 1930.

Decided June 2, 1930.

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

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

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

MARTIN, Chief Justice.

The appellants jointly were convicted and sentenced upon an indictment for robbery, committed as alleged by stealing a pocketbook containing money from the person of another. They have appealed to this court.

At the conclusion of the evidence introduced by the government, the defendants moved for a directed verdict; but the motion was overruled. The defendants thereupon, without calling any witnesses, stood upon their exceptions to this and other rulings of the court.

Appellants contend that the lower court erred in denying their motion for a directed verdict. This contention requires a brief review of the evidence.

The testimony discloses that one Seruch T. Kimble, together with his daughter and a young lady friend, went to a football game at the baseball park at Seventh street and Florida avenue in the city of Washington, on November 17, 1928. They reached the grounds about 2 o'clock, and Mr. Kimble went to the ticket office and bought three tickets costing $6. When paying for them, he took his pocketbook containing $235 in money from his left side pocket, and took $1 from it, replacing the pocketbook in his pocket, and with this $1 and $5 which he took from his vest pocket he paid for the tickets. He then rejoined the girls at the edge of the crowd going into the park, at a point about thirty or forty feet from the iron gates opening into the grounds. The crowd at the entrance numbered three or four hundred people, and as they proceeded the whistle blew for the kick-off. Mr. Kimble kept his hand on his left side pocket and carried his overcoat over his right arm, but he was unable to say exactly when he removed his hand from his pocket. When probably half way through the crowd, some one tapped him on the right shoulder "sufficiently noticeable" for him to turn around, and he did so, but he did not see any one whom he recognized. For some time before that, however, he had seen one of the defendants on his right side. He first saw him a third of the way through the crowd until within ten feet of the gate. He missed his pocketbook when he got in the park. He last knew he had his pocketbook when he was at least halfway through the crowd.

Mr. Kimble's daughter was about ten feet behind her father as they started for the gate, and saw both of the defendants at that time. She was trying to stay directly behind her father so as not to lose him in the crowd, but was unable to do so. Harris, one of the defendants, was right behind her father, and she could not edge her way to get directly behind him. Harris was closer to her father than the other people around them, so close that there was not the least bit of room between them, closer than anybody else in the crowd, and this prevented her from getting in the position she wanted when following her father in. She saw Harris tap her father on the shoulder and her father turn around. The other defendant, Rohan, at that time was on the left-hand side of her father. When they got about five feet from the gate both defendants moved aside and let the Kimble party go into the park without going in at the same time themselves. She did not see Rohan take the pocketbook, and she could not say that the defendants did not eventually go through the gate after the Kimble party went in.

About a week later, when the defendants were under arrest, they stated to a detective sergeant that they were not at the ball park on November 17th, that they did not remember where they were on that afternoon, but were sure they were not at the ball park; they said they had come to town with their wives, and were not sure which hotel they were stopping at, the Continental, the Commodore, or the Lincoln.

We think this evidence, although circumstantial only, is sufficient to sustain the verdict of the jury. It tends to prove that Kimble's pocketbook was taken from his pocket while he was passing through the crowd at the gate; that the defendants had crowded about him in a suspicious manner at that point; that one of them had tapped him on the right shoulder, causing him to look away from his left side where he kept his pocketbook, while at the same time the other defendant was crowding equally near to him on that side; that the tapping apparently was without any purpose or result except to attract Kimble's attention from his left side; also that the defendants, when under arrest and questioned, admitted that they had "come to town" together, but denied that they had been at the ball park on the afternoon of the game, although uncertain as to where they were at that time, and also uncertain as to the hotel where they and their wives were staying.

Moreover, all questions relating to the credibility of the witnesses are...