Hunt v. United States, 17207.

• Decision Date: 28 February 1963
• Docket Number: No. 17207.,17207.
• Citation: 115 US App. DC 1,316 F.2d 652
• Parties: George R. HUNT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 1, 316 F.2d 652 (1963)

George R. HUNT, Appellant, v.UNITED STATES of America, Appellee.

No. 17207.

United States Court of Appeals District of Columbia Circuit.

Argued February 1, 1963.

Decided February 28, 1963.

Mr. Stephen S. DeLisio, Washington, D. C.(appointed by this court), for appellant.

Mr. Tim Murphy, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Charles B. Duncan, Principal Asst. U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Mr. Robert D. Devlin, Asst. U. S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, BASTIAN and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge.

Appellant and a co-defendant were convicted under a one-count indictment charging robbery¹ in that they"by force and violence and against resistance and by sudden and stealthy seizure and snatching and by putting in fear, stole and took from the person and from the immediate actual possession of Marie G. Ali, property of Marie G. Ali, of the value of about $28.00, consisting of one wallet of the value of $1.00 and $27.00 in money."Appellant asks reversal of his conviction, alleging that the trial court, on request, in this purely circumstantial case, refused to give the "every reasonable hypothesis of innocence" charge² in the language of our opinion in Carter v. United States, 102 U.S.App. D.C. 227, 252 F.2d 608(1957).Appellant also alleges that the trial court erred in refusing to grant his motion for a judgment of acquittal based on insufficiency of the evidence as to the charge of robbery and the lesser included offense of larceny.

About 6:00 P.M. on December 12, 1961, Mrs. Ali was subjected to the apparently normal jostling of a bus stop crowd of 20 or 25 persons while boarding a bus.On entering the bus she noticed that her purse was open and her wallet missing.She looked through the bus window to the bus stop from whence she had come and saw the appellant, Hunt, with his co-defendant, Kitt, shaking hands.She alighted from the bus at its first stop and, accompanied by two policemen, proceeded toward Seventh Street where she had boarded the bus.As Mrs. Ali and her armed escort approached Seventh Street, they noticed Hunt and Kitt, who immediately began to run.The officers gave pursuit and succeeded in arresting Kitt, who threw Mrs. Ali's wallet in the gutter a few feet from the place where the arrest was effected.Hunt continued running, but was also caught and brought back to confront Kitt.Initially both denied knowing each other.Later, however, Hunt admitted knowing Kitt and fleeing with him on sighting the police.He also admitted that, as the police were approaching with Mrs. Ali, Kitt said, "There's that woman."Whereupon they both fled.

Mrs. Ali testified that her wallet, when it was in her purse, contained one twenty-dollar bill and seven ones.When the police found the wallet in the gutter, the seven ones were gone from it, but four one-dollar bills were found on Kitt and three one-dollar bills on Hunt.On trial, Hunt took the stand and testified that he had eleven dollars on him at the time of his arrest.This testimony apparently surprised defense counsel who, after a brief recess, advised the court that Hunt wanted to correct his testimony.Hunt then testified that he did indeed have only three dollars on him when arrested and that he had testified to having more than that amount because, under the circumstances, he was afraid of the implication of having just three.On cross-examination it was also developed, for purposes of testing credibility, that Hunt had been convicted of offenses similar to the one which was on trial on five prior occasions.

I.

In Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150(1954), in upholding the trial court's refusal to instruct that "where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt,"the Court said: "There is some support for this type of instruction in the lower court decisions citing cases, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect citing cases and authorities."

It is true that in Carter, supra, decided after Holland, supra, this court did say "that the rule for the jury is that, unless there is substantial evidence of facts which exclude every reasonable hypothesis but that of guilt, the verdict must be not guilty, and that, where all the substantial evidence is consistent with any reasonable hypothesis of innocence, the verdict must be not guilty."Carter v. United States, supra, 102 U.S.App.D.C. at 231-232, 252 F.2d at 612-613.The ultimate test for the jury in a criminal case, however, is whether the defendant has been proved guilty beyond a reasonable doubt.This applies whether the evidence relied on for conviction is direct or circumstantial, or both.In explaining reasonable doubt in a circumstantial case, it would not be improper to give an "every reasonable hypothesis" instruction in the language of Carter.But where the jury is properly instructed otherwise on the standard for reasonable doubt, a charge in the language of Carter is not required.Holland v. United States, supra.

II.

In arguing his second point based on the insufficiency of the evidence, appellant fragments the Government's case and then seeks to show that each fragment considered in isolation is consistent with an hypothesis of innocence.For example, appellant argues that the fact that he and Kitt were shaking hands at the bus stop a few moments after the alleged offense proves nothing except that perhaps Hunt, in spite of his initial denial to the police, was acquainted with Kitt.He also argues that his flight with Kitt on seeing the police coming with "that woman" was an act of "terrorized innocence" in that he had just been released from jail and on impulse fled when Kitt fled.He also suggests that his perjurious attempt to mislead the court and the jury as to the number of one-dollar billshe had on his person at the time of his arrest is a circumstance which should be disregarded as the act of an "innocent man caught in a web of circumstances."Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41(1954).

Unfortunately for appellant, the jury must take the Government's case as a whole and determine whether as a whole it proves guilt beyond a reasonable doubt.Certainly friends do shake hands, and there are indeed "so many reasons for flight consistent with innocence, that it scarcely comes up to the standard of evidence tending to establish guilt."Alberty v. United States, 162 U.S. 499, 510, 16 S.Ct. 864, 868, 40 L.Ed. 1051(1896).But the handshaking here put appellant at the scene of the offense moments after it occurred with a co-defendant who threw Mrs. Ali's wallet in the gutter on being arrested by the police.And, while flight certainly does not raise a presumption of guilt, it is still admissible evidence of consciousness of guilt.Alberty v. United States, supra;Hickory v. United States, 160 U.S. 408, 16 S.Ct. 327, 40 L.Ed. 474(1...