Hunt v. United States, 15281

• Decision Date: 11 May 1956
• Docket Number: 15282.,No. 15281,15281
• Citation: 231 F.2d 784
• Parties: Carl HUNT, Appellant, v. UNITED STATES of America, Appellee. Robert Michael HICKMAN and Robert Theodore Weaver, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F.2d 784 (1956)

Carl HUNT, Appellant, v. UNITED STATES of America, Appellee.

Robert Michael HICKMAN and Robert Theodore Weaver, Appellants, v. UNITED STATES of America, Appellee.

Nos. 15281, 15282.

United States Court of Appeals Eighth Circuit.

April 9, 1956.

Rehearing Denied May 11, 1956.

James J. Rankin, St. Louis, Mo., filed brief for appellant Carl Hunt.

John T. Sluggett, III, St. Louis, Mo., filed brief for appellants Robert Michael Hickman and Robert Theodore Weaver.

Harry Richards, U. S. Atty., and Wayne H. Bigler, Jr., and William K. Stanard, II, Asst. U. S. Attys., St. Louis, Mo., filed brief for appellee.

Before SANBORN, JOHNSEN and VOGEL, Circuit Judges.

Rehearing Denied in No. 15282 May 11, 1956.

SANBORN, Circuit Judge.

Robert Michael Hickman, Robert Theodore Weaver and Carl Hunt were, on October 13, 1954, charged by indictment with the armed robbery on July 27, 1954, of the Bank of Pevely, Pevely, Missouri, a federally insured bank. In the first count of the indictment, Hickman and Weaver were charged with committing the robbery, and in the second count Hunt was charged with aiding and abetting them in committing it. Each of the defendants entered a plea of not guilty. They were tried to a jury, convicted and sentenced, and have appealed.

The only points raised by Hunt on his appeal are that the trial court erred in refusing to declare a mistrial because of remarks of Government counsel in his closing argument to the jury, which remarks Hunt contends amounted to a reference to his failure to testify, and that the court also erred in refusing his request that the jury be instructed to disregard the remarks.

The remarks complained of by Hunt we do not find in the record on his appeal, but we shall assume that they were as stated in his brief. It appears that in his closing argument to the jury, counsel for the Government said:

"Now, in connection with the argument of Mr. Rankin, who is counsel for Mr. Hunt, there are one or two points I would like to make. The first one is about that fingerprint. I feel that there can be no question in your mind that that fingerprint that was found in the Oldsmobile was the defendant, Carl Hunt\'s fingerprint. Mr. Rankin mentioned several times that Mr. Hunt is a mechanic and although he did not say so, I think that he would like to create some sort of an inference that perhaps Mr. Hunt worked on this Oldsmobile sometime. Now, I put it to you if he had there would have been evidence introduced to that effect, but on the contrary —"

Counsel for Hunt, out of the hearing of the jury, then said:

"Your Honor, I feel that that remark just made there is a comment upon the failure of the defendant to testify in this case, and that it is error to the extent that I feel constrained to ask for a mistrial because of it. The remark that he made there that Mr. Rankin has inferred that Hunt at one time or another worked upon that automobile and that Mr. Stanard went on to say that if he had there would be some evidence of it, that is indicating that Hunt would have testified to that effect. I think that is a comment on his failure to testify and I ask for a mistrial because of that."

To this statement, counsel for the Government replied:

"Certainly there could have been evidence other than by the defendant as to whether or not that automobile had been in there, and I was going on to state about Crowe\'s direct testimony that he Hunt never worked on it. Mr. Crowe testified that he did not know Hunt, Hunt had never worked on his car, that in my statement I think would have been evidence, I do not think that that is a comment on Mr. Hunt\'s failure to testify."

The court overruled Hunt's request for a mistrial, and overruled a further request that the jury be instructed to disregard the remarks complained of by Hunt's counsel.

It may be that if the evidence had conclusively shown that Hunt was the only person who could have testified that he, as a mechanic, had legitimately worked on the automobile which was, without the knowledge of its owner, used in connection with the robbery of the bank, there might be some basis for the assertion that Government counsel was indirectly attempting to comment upon Hunt's failure to testify; but if Hunt had, in fact, worked as a mechanic upon the automobile, evidence other than his own would, no doubt, have been available and would or could have been produced by other witnesses. We regard the remarks of Government counsel in this regard as not improper. They certainly did not call for either a mistrial or for a warning to the jury. Compare, Gargotta v. United States, 8 Cir., 77 F.2d 977, 978. Moreover, the court in its charge gave the following instruction:

"A defendant is not required under the law to take the witness stand. He cannot be compelled to testify at all, and if he fails to do so no inference unfavorable to him may be drawn from that fact."

The only assertion of error made by Hickman and Weaver is that "The Court erred in excluding the official records of the Missouri State Highway Patrol which were kept in the regular course of business and under the direction and supervision of the commanding officer." Hickman and Weaver in their brief make the following statement, which we shall accept for the purposes of this opinion:

"During the trial, the defendants attempted to show and to introduce into evidence the official records of the Missouri State Highway Patrol with respect to the investigation of the bank robbery and of the subsequent police lineups, and the following took place:

"Sergeant Louis Feco, a witness for the defense, having previously identified himself as a State Highway Trooper, and having testified that he was in court in response to a subpoena duces tecum, and that he was in custody of the official records of the State Highway Patrol, records which were kept in the regular course of business and under the supervision and direction of Captain Oliver, troop captain, was asked to read the official records, as follows:

"Question by Mr. Sluggett counsel for Hickman and Weaver: `Would you read that exhibit to the Court and Jury?\'

"Mr. Bigler co-counsel for the Government says, `I object on the grounds, your Honor, that the proposed exhibit is hearsay, for one thing. It describes in such general language what it purports to say that it is subject to a number of interpretations; and the original person making the description should be here to further make it more exact.\'

"The Court: `Objection sustained.\'

"Mr. Sluggett: `I offer to prove by Defendants\' Exhibit E, by and through the witness, who is a Trooper and in custody of the official records of the

...