Hiet v. United States, 19716.

• Decision Date: 22 June 1966
• Docket Number: No. 19716.,19716.
• Citation: 365 F.2d 504,124 US App. DC 313
• Parties: William Henry HIET, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

124 US App. DC 313, 365 F.2d 504 (1966)

William Henry HIET, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 19716.

United States Court of Appeals District of Columbia Circuit.

Argued April 5, 1966.

Decided June 22, 1966.

Mr. George W. Mitchell, Washington, D. C. (appointed by this court), with whom Mr. Jerome Shuman, Washington, D. C., was on the brief, for appellant.

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Mr. David G. Bress, U. S. Atty., and Mr. Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and DANAHER, Circuit Judge.

PRETTYMAN, Senior Circuit Judge:

The judgment of this court is that the judgment of conviction be reversed. Judge Danaher dissents with an opinion. Judge Bazelon concurs with an opinion stating the bases for his view. My views are stated in a separate opinion, which follows:

Appellant was indicted, tried and convicted for grand larceny. The complainant reported he had left his car parked on D Street just east of New Jersey Avenue for about thirty minutes on the evening of November 24, 1964, and returned to find the right-front vent window jimmied open and two valuable voltage recorders (extremely sensitive low-voltage sensing devices worth $1,485 apiece) and an overcoat missing from the rear seat and two pairs of sun glasses missing from the glove compartment. The police found fingerprints on the inside of the opened vent window. The glass was not broken, but the lock was broken off. Hiet was later arrested for another offense and still later charged with this one.

The only evidence against Hiet in this case was the fingerprint taken from the car window, identified as his. He was not placed in the vicinity of the car on the evening in question, or in that immediate neighborhood at any other time. He was not shown to have been in possession of any of the stolen property at any time. None of it was ever recovered, so far as this record shows. There was no testimony as to the probable age of the print when taken, although the Government's theory was it was not more than an hour old when the expert lifted it. Evidence showed that Hiet had been living and working in the city four or five days prior to the date in question. The print may have been put on the window on any one of those days or nights. The evidence also was that the complainant owner of the car had been in the city for about two weeks, parking on the street all day and all night. There was no evidence that he locked his car when he left no valuable property in it. Hiet, wandering about the street or simply passing by, at a time other than the thirty-minute period critical in this case, may have pushed on the unlocked vent; perhaps he did so for no good purpose.

Unquestionably the print raises a suspicion. But a suspicion, even a strong one, is not enough. Guilt must be established beyond a reasonable doubt, and each and every element of the offense charged must be established beyond a reasonable doubt. The crime of larceny is that the accused did "take and carry away" something of value.¹ Obviously one element of the crime is that the accused took the property; not that he was at some time in the vicinity of the property but that he took it and carried it away.

Where only circumstantial evidence is involved, it used to be stated that to sustain conviction the proof must negative every hypothesis save that of guilt.² But in the Holland case in 1954,³ the Supreme Court said the better rule is simply to instruct properly on reasonable doubt, and expressed the view that the additional instruction is confusing and incorrect. In the case at bar there was on the evidence in the record a reasonable doubt that Hiet took the property; indeed there was no evidence whatsoever that he took it or carried it away. Without any evidence whatever connecting Hiet with the missing property, I think there is necessarily a doubt (more than a reasonable one, I think) that he took it and carried it away. The doubt is not a visceral or moral one; it is a doubt upon the record; the lack of essential proof creates the doubt as a legal matter. So the judgment must be reversed.⁴

Several minor features of the Government's case, not in themselves important, indicate a lack of regard for accuracy on the part of some witnesses and are disturbing to me upon review:

1. The complainant at first testified in vivid precision that upon noting the condition of his car he went back to the Dodge Hotel, a block away, and asked the desk clerk how to get to the nearest police station. Later he said, "Actually, I never left the car." He then said a companion went to the hotel while he (the complainant) stayed at the car.

2. The complainant testified that this companion went with him to the police station and the police officer there (an Officer Nenno) looked at his fingers and those of his companion. Officer Nenno testified that the complainant was alone when he came in on the evening in question. Asked, "There wasn't another person?", the officer repeated, "I don't believe there was, sir."

3. The prosecutor told the court in an opening statement that a police officer would compare fingerprints taken from the car window ("latent prints") with known prints of the defendant taken on February 7, 1965. An officer did testify that he took prints of this defendant on that date, and the prints were introduced as Government's Exhibit No. 2. Another officer testified that he "lifted" prints from the car, and these were presented as Government's Exhibit No. 3. Then the witness testified that he compared Exhibits 2 and 3 and that he made enlarged photographs of one finger shown on Exhibit 3 and one on Exhibit 2. But on cross-examination the officer said he actually made his comparison on January 30th (a week before the prints in Exhibit 2 were taken), and he said, "Well, truthfully, we had another previous set of fingerprints with which they were compared." He explained that he had made his comparison with "a previous fingerprint card which we had in our office", but the photograph in evidence was of the print taken on February 7th.

The delay in this trial is also a disturbing feature to me. The offense occurred on November 24th, Hiet was placed under arrest on February 7th, and trial was had on July 14th. Since I would reverse on other grounds, I need not pursue the point.

Reversed.

BAZELON, Chief Judge (concurring):

I agree with the result reached by Judge Prettyman. I find it unnecessary, however, to decide whether the weakness of the fingerprint evidence alone is enough to require reversal since I rely on an additional infirmity, namely, the prejudice suffered by appellant in presenting his defense.

The alleged offense occurred on November 24, 1964. According to police testimony, appellant's fingerprints were matched with the prints on the vent window on January 30. Although he was taken into custody on another charge on February 7, he was not indicted until April 13. This unexplained delay may have substantially prejudiced appellant's alibi, his sole defense, for his only witness, his employer during the period in question, was unable to recall whether appellant was at work on the day or at the time of the robbery.¹

DANAHER, Circuit Judge (dissenting):

This appellant contends that the District Judge erred in denying his motion to dismiss the indictment for lack of speedy trial. That motion, argued on the morning when the trial was to commence, noted that the indictment had been filed on April 13, 1965 with a trial date set for May 31, 1965. That week the Government moved to continue the trial date until July. There would seem to have been no unreasonable delay, taking all circumstances into account, for this appellant was also under indictment in Criminal No. 309-65, which had been set for trial on June 7, 1965, and in Criminal No. 403-65 which had been assigned for June 9, 1965. All witnesses in these two cases were local residents.

In the instant case, however, Criminal No. 399-65, the complainant was a resident of Philadelphia. It may well be that the Government reasonably might have...