Jackson v. United States, 19545.

• Citation: 123 US App. DC 276,359 F.2d 260
• Decision Date: 05 April 1966
• Docket Number: No. 19545.,19545.
• Parties: Frederick JACKSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

123 US App. DC 276, 359 F.2d 260 (1966)

Frederick JACKSON, Appellant, v. UNITED STATES of America, Appellee.

No. 19545.

United States Court of Appeals District of Columbia Circuit.

Argued December 10, 1965.

Decided April 5, 1966.

Petition for Rehearing Denied May 12, 1966.

Mr. Charles H. Mayer, Washington, D. C. (appointed by this court), for appellant.

Mr. James A. Strazzella, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges.

Petition for Rehearing En Banc Denied May 12, 1966.

LEVENTHAL, Circuit Judge:

This appeal is from a judgment on a verdict of guilty of robbery, D.C.Code § 22-2901.

Though counsel for appellant, appointed by this court, has developed and forcefully presented three contentions for our consideration, we find that neither separately nor in combination do they constitute grounds of reversal.

I

We begin by considering, and rejecting, the contention that the evidence was not sufficient to submit the case to the jury on the charge of robbery. The complaining witness testified that before leaving home to go to church on the morning of November 15, 1964, she counted the money in her wallet, which contained a five dollar bill folded in a particular manner, a Kennedy half dollar, five quarters, five dimes, one penny and three bus tokens on a safety pin. She was waiting at a bus stop among a number of other people when someone yelled that a man had snatched her wallet out of her bag. She looked down and saw her pocketbook open and her wallet missing. She turned just at that moment and saw a man, whom she identified at trial as appellant, running from the scene. A number of persons at the bus stop called out, "That is him that is running."

Appellant, who admitted being at the bus stop, was easily identifiable by a distinctive tam hat. The victim, as well as several other bystanders, immediately began to pursue appellant. One of his pursuers testified that appellant, when cornered at one point, first offered him money, and then threatened that appellant's "boys" would "take care" of him. Appellant managed to get away, but was finally captured, after a struggle, by an off-duty police officer with the aid of that pursuer.

Appellant was found to have in his possession one five dollar bill, folded in a peculiar manner, and identified at trial as the one that had been in the victim's pocketbook, seven or eight one dollar bills which were apparently his own, five dimes and at least five quarters, a sole Kennedy half dollar, a single penny and three bus tokens on a safety pin. The wallet and the personal papers it contained were never recovered.

Appellant testified in his own behalf that he too was pursuing the real thief, offering a description coinciding with that given by the victim for a man who had fled behind appellant. Appellant claimed that the real thief had dropped the five dollar bill and the tokens on a pin and appellant had picked up the items while continuing the chase.

Appellant argues that the evidence only warranted a submission to the jury of a larceny charge, and that there was insufficient evidence of a taking from the person or immediate actual possession of the victim. Appellant relies on Hunt v. United States, 115 U.S.App.D.C. 1, 316 F.2d 652 (1963). Hunt was an unusual case where there was a reasonable inference, from the proven jostling of the victim by the crowd, that the pocketbook opened and the wallet fell out. Here there was a group of people around the bus stop, but no evidence of any jostling or pushing of the victim, and no proven factual circumstances from which it could be inferred, by some reasoning going beyond mere speculation, that the wallet had fallen. Graves v. United States, 115 U.S.App.D.C. 294, 318 F.2d 265 (1963). In addition, there is the unchallenged testimony by the victim that someone actually saw the defendant take the wallet out of the victim's purse. That testimony is hearsay, says appellant. But the victim was on the stand and could testify as to the yelling and calling she heard since these were spontaneous exclamations admissible within a wellknown exception to the hearsay rule, sometimes referred to by the catch-all "res gestae" phrase. See 6 Wigmore, Evidence § 1755 (3d ed., 1940), and cases cited.

The sufficiency of the evidence is manifest when this testimony is coupled with the evidence that appellant was at the bus stop and was found to have the stolen money in his possession.

II

The statute provides, D.C.Code § 22-2901:

Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery * * *.

The indictment reads:

On or about November 15, 1964, within the District of Columbia, Frederick Jackson, by force and violence and against resistance and by putting in fear, stole and took from the person and from the immediate actual possession of Martha J. Ray, property of Martha J. Ray.

Our conclusion above that there was evidence of commission of the crime is plainly based on the evidence showing a "sudden or stealthy seizure or snatching." But those critical words, notes appellant, were omitted from the indictment. It was therefore error, he claims, for the trial judge to instruct the jury that they could find defendant guilty of robbery if they found the defendant had taken Mrs. Ray's purse by sudden or stealthy seizure or snatching.

The probability that the omission in the indictment was an unfortunate slip of the pen would not bar reversal if a substantial right of appellant were denied. We do not think that was the case. A defendant may not be tried for a crime with which he was not charged. And the indictment must adequately set out allegations amounting to a crime. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), dismissing an indictment lacking a critical element. Here, however, the indictment obviously is not subject to dismissal.

The indictment alleged the critical element of the crime, a taking "by force or violence." Such taking can be against resistance. Or it can be by stealthy snatching. The common law crime of robbery did not include stealthy snatching, but the statute expands the definition of the crime. Neufield v. United States, 73 App.D.C. 174, 189, 118 F.2d 375, 390 (1941), cert. denied, sub nom. Ruben v. United States, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1942). Thus, in a pickpocket robbery case this court has made it clear that "the requirement for force in the robbery statute is satisfied by an actual physical taking of the property from the person of another, even though without his knowledge and consent, and though the property be unattached to his person." Turner v. United States, 57 App.D.C. 39, 16 F.2d 535 (1926). In Spencer v. United States, 73 App.D.C. 98, 116 F.2d 801 (1940), the statutory concept was stated as embracing the "force" used in taking property from the "immediate actual possession" of another, regarded as "an area within which the victim could reasonably be expected to exercise some physical control over his property."

The indictment could validly have been limited to an allegation of a taking "by force or violence" on the date and from the person in question. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932). Detailed specification of how such taking was made was available for discovery by defendant on appropriate motion. The language in the indictment, that the taking was against resistance, was a specification of a way of committing the offense. Turner v. United States, supra.¹ It was surplusage, and its proof was not required. United States v. Noveck, 271 U.S. 201, 203, 46 S.Ct. 476, 70 L.Ed. 904 (1926); Tomlinson v. United States, 68 App.D.C. 106, 108, 93 F.2d 652, 654, 114 A.L.R. 1315 (1937), cert. denied sub nom. Pratt v. United States, 303 U.S. 642, 58 S.Ct. 645, 82 L.Ed. 1107 (1938). The federal courts have scrapped the old rule condemning every variance between indictment and proof, and convictions are not now set aside except for variance resulting in substantial prejudice to defendant. Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Krepper, 159 F.2d 958, 959, 971 (3d Cir. 1946) cert. denied, 330 U.S. 824, 67 S.Ct. 865, 91 L. Ed. 1275 (1947); Rule 52(a) Fed.R. Crim.P.

We have carefully considered Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), and are convinced that it does not require a contrary result. The indictment under the Hobbs Act charged Stirone with extortion affecting interstate commerce through wrongful use of a threatened labor dispute, directed against one Rider, to interfere with shipments of sand to his Pennsylvania concrete plant. At the trial, over defense objection, the judge admitted evidence concerning, and instructed the jury that guilt could be rested on, interference with interstate commerce in regard to possible future shipments of steel to points outside of Pennsylvania from a steel mill being constructed with concrete from Rider's plant. "We cannot know," wrote Justice Black, "whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with." Defendant effectively had ben deprived of his right "to have the grand jury make the charge on its own judgment." 361 U.S. at 219, 80 S.Ct. at 274.

In Stirone the prosecution was relying at trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment. A court may readily perceive a plausible possibility of prejudice in the contention that a federal grand jury willing to indict an extortioner for his interference...