McKenzie v. United States, 7998.

• Decision Date: 09 March 1942
• Docket Number: No. 7998.,7998.
• Citation: 75 US App. DC 270,126 F.2d 533
• Parties: McKENZIE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

75 US App. DC 270, 126 F.2d 533 (1942)

McKENZIE v. UNITED STATES.

No. 7998.

United States Court of Appeals for the District of Columbia.

Argued January 12, 1942.

Decided March 9, 1942.

Mr. John H. Wilson, with whom Mr. William A. Powell, both of Washington, D. C., was on the brief, for appellant.

Mr. Bernard Margolius, Assistant United States Attorney, with whom Mr. Edward M. Curran, United States Attorney, both of Washington, D. C., was on the brief, for appellee.

Before GRONER, C. J., and STEPHENS and RUTLEDGE, JJ.

PER CURIAM.

Appellant was convicted in the court below on each of two separate indictments, one charging rape, the other robbery. He was sentenced on the former to suffer the death penalty. The offenses were charged to have occurred June 24, 1941. Indictments were returned July 8, and the trial was had July 28.

The victim of the assault and robbery was Mrs. Vada Abarca. In the afternoon of June 24, 1941, she was alone in the cleaning and pressing establishment in which she was employed, located in 14th Street, N.W., in Washington City, when a Negro man wearing dark glasses came in and, after inquiring the cost of pressing a suit of clothes, went to the front door, locked it, and with a pistol pointed at her head, first robbed the money drawer, and then forced her into a back room, tied her hands, made her lie down on the floor, and then criminally assaulted her. He left her gagged and tied to a post, taking with him at least one suit of clothes belonging to a patron of the place. The witness described her assailant as dark skinned, between thirty and thirty-five years of age, of medium height and build, with a deep-set nose and long protruding lips, and wearing a brown suit and sun glasses. Two days later she identified appellant, who was then and there arrested and lodged in the jail house.

Upon the return of true bills charging rape and robbery, appellant filed a motion to quash in the following language:

"That said indictments were returned by the grand jury of the United States of America in and for the District of Columbia, sworn to act for and during the July term, A.D. 1941. That the defendant is a Negro; that the above said grand jury which returned said indictment did not have upon it any member of the Negro race; that the defendant therefore charges that a systematic course of procedure was adopted for the purpose of excluding Negroes from said grand jury on account of their color."

The motion was supported by the affidavit of counsel "on information and belief." Five days later, the motion was overruled, and appellant excepted.

We think the action of the trial court correct. There was neither proof nor offer of proof of the intentional exclusion of Negroes from service on grand juries generally in the District of Columbia. What the motion charges is a systematic course of procedure for the purpose of excluding Negroes from the particular grand jury which brought in the indictment. Doubtless this was enough if proved, but there was no proof or offer of proof of this charge. While we may take judicial notice of the presence in the District of Columbia of members of the Negro race possessing the qualifications of jurors, we cannot take judicial notice of their exclusion, systematic or otherwise, without proof or an offer of proof to that effect. Precisely this was decided in Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L. Ed. 572, and Smith v. Mississippi, 162 U. S. 592, 16 S.Ct. 900, 40 L.Ed. 1082.

This being a death case, we have exercised the right to examine the entire record, without regard to assigned errors, to determine whether the accused has had a fair and impartial trial. United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555; Thomas v. District of Columbia, 67 App.D.C. 179, 183, 90 F.2d 424, 428; Kinard v. United States, 69 App.D.C. 322, 101 F.2d 246.

Briefly summarized, the evidence as to identification shows that two days after the assault Mrs. Abarca and a Miss Harper were driven by two police officers to various parts of the colored sections of the city. The presence in the car of Miss Harper was due to the fact that a week or so prior to the assault on Mrs. Abarca a Negro man had robbed the cleaning establishment in which she was the attendant, and the theory of the police was that the same person had committed both crimes. The purpose of the trip was to enable them to view as many colored men as were seen in their drive through the city. After some five or six hours, Mrs. Abarca pointed out appellant, standing on a street corner, as her assailant. When called as a witness at the trial, Mrs. Abarca testified on her direct examination to the presence of Miss Harper in the car, but to nothing more in relation to her. On cross-examination counsel for appellant asked what the officers had first said to her and to Miss Harper, and she replied they asked us if we would mind helping them look "for this person." Counsel then asked the witness if Miss Harper said anything to the officers, and upon the District Attorney's objection to the question, counsel stated to the court that he purposed showing that Miss Harper first identified appellant as the man who had robbed her and that Mrs. Abarca's identification was induced by this prior identification. The court refused to allow the question to be asked, on the ground that it would bring to the attention of the jury a third crime for which appellant had been indicted but on which he was not then on trial, and would tend to incriminate him in another offense. Counsel answered that he was willing to take the risk, and he intended to follow up by showing that Miss Harper was mistaken. The court then permitted counsel to ask who first pointed out the man, and the witness (Mrs. Abarca) answered she had, and that Miss Harper had then "hollered" but she did not know what she "hollered."

Again, when one of the escorting police officers was on the stand, he was asked by counsel for appellant what Miss Harper had said at the moment of identification. The District Attorney objected, and the court declined to allow the witness to answer, on the ground that it would introduce another issue in the trial. Then ensued a colloquy between court and counsel, as the result of which the court ruled the question might be asked "at appellant's own risk." The witness answered "she Miss Harper said he was the man who held her up."

Thereafter the government placed Miss Harper on the stand and asked her only if she heard and saw Mrs. Abarca point out the defendant as her assailant. She answered in the affirmative, and then on cross-examination appellant's counsel asked her if she had not herself identified appellan...