Johnston v. United States, 5909-5912.
| Decision Date | 21 October 1958 |
| Docket Number | No. 5909-5912.,5909-5912. |
| Citation | 260 F.2d 345 |
| Parties | William Reece JOHNSTON, Appellant, v. UNITED STATES of America, Appellee (two cases). Fred Charles RILEY, Appellant, v. UNITED STATES of America, Appellee (two cases). |
| Court | U.S. Court of Appeals — Tenth Circuit |
Roy Cook, Kansas City, Kan., for appellants.
Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan. (William C. Farmer, U. S. Atty., Topeka, Kan., was with him on the brief), for appellee.
Before MURRAH, PICKETT and BREITENSTEIN, Circuit Judges.
On August 20, 1957, and again on September 27, 1957, the Twin City State Bank of Kansas City, Kansas was held up and robbed by two unmasked, armed bandits. The defendants, Riley and Johnston, appellants here, were identified by bank employees and customers in the bank as the persons who staged the holdup on each occasion. An indictment was returned for each robbery, and each indictment charged both defendants with having violated Title 18 U.S.C.A. § 2113 (d).1
Upon motion of the United States, the cases were consolidated for trial. The guilt of the defendants was established by overwhelming and uncontradicted evidence. Upon conviction each was sentenced to imprisonment for a term of fifteen years on each indictment, the terms to run consecutively, and fined a total amount of $5,000.
Defendants assign as error the order consolidating the two indictments for trial. Rule 13, Federal Rules of Criminal Procedure, 18 U.S.C.A., provides:
Rule 8 permits offenses to be charged in separate counts of the same indictment or information, which are:
"* * * of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
The rule also states:
"Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."
The indictments charged the defendants with participating in acts constituting crimes which were of the same character, and the trial court did not abuse its discretion in consolidating them for trial. Archambault v. United States, 10 Cir., 224 F.2d 925, and cases cited; United States v. Harris, 7 Cir., 211 F.2d 656, certiorari denied 348 U.S. 822, 75 S.Ct. 34, 99 L.Ed. 648; United States v. Smith, 2 Cir., 112 F.2d 83.
Defendants contend that they wrongfully were denied the right to inspect statements of government witnesses in the possession of the prosecution. Prior to trial the defendants moved for an order directing that statements of different witnesses be produced. This motion was premature and was properly denied. During the trial the District Attorney stated that all signed statements of government witnesses would be furnished the defendants after each witness testified. The record does not disclose that any such statement, with the possible exception of one, was withheld. Title 18 U.S.C.A. § 3500, provides that after a witness called by the United States has testified in a criminal prosecution, the court shall, on motion of the defendant, order the United States to produce statements signed by the witness or otherwise adopted or approved by him, or any other record or transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness to an agent of the government and recorded contemporaneously with the making of such oral statement. In United States v. Palermo, 2 Cir., 258 F.2d 397, 399, the court said:
"* * * The evident purpose of the statute is to limit the right of inspection for use in cross-examination to reasonably accurate or authenticated statements and reports, for which the witness, not the Government agent, is responsible."
The defendant is entitled to the production of a statement made by the witness only after a showing that there is in existence a statement such as defined by the statute. One witness testified that he had signed a statement for the F.B.I.2 No request or motion was made for the production of the statement. To sustain his position that statements of the witnesses in his possession were delivered to defendant's counsel...
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