Neufield v. United States

• Decision Date: 27 January 1941
• Docket Number: No. 7558.,7558.
• Citation: 73 App. DC 174,118 F.2d 375
• Parties: NEUFIELD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 App. DC 174, 118 F.2d 375 (1941)

NEUFIELD et al. v. UNITED STATES.

No. 7558.

United States Court of Appeals for the District of Columbia.

Decided January 27, 1941.

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Levi H. David, Richard Tedrow, and Robert I. Miller, all of Washington, D. C., for appellants.

Edward M. Curran, U. S. Atty., and William S. Tarver, Asst. U. S. Atty., both of Washington, D. C., for appellee.

Before STEPHENS, MILLER, and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

The appellants Neufield, Foley, Flynn and Rubin, hereafter referred to as defendants, or by name, were, on November 17, 1939, convicted upon a jury trial in the District Court of the United States for the District of Columbia of the crime of robbery. Rubin, on November 18, moved separately, and Neufield, Foley and Flynn, on November 20, moved jointly and severally, for a new trial on various grounds which need not here be stated. The motions were denied, and on December 15, 1939, each of the defendants was sentenced to imprisonment in the penitentiary for from three to fifteen years. The statute under which they were indicted provided that "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 . . .." Act of March 3, 1901, 31 Stat. 1322, c. 854, § 810, D.C.Code (1929) tit. 6, § 34. The indictment charged that the defendants on June 10, 1932, in the District of Columbia "by force and violence, and against resistance, and by putting in fear, and by sudden and stealthy seizure and snatching, feloniously did steal, take and carry away, from and off the person, and from the immediate, actual possession of one Thomas E. Elgin, then and there being, a certain sum of money, to wit, nine thousand and twenty-one dollars in money, of the value of nine thousand and twenty-one dollars, of the money and property of the Washington Mechanics Savings Bank, a body corporate; . . .."

Briefly stated, the evidence showed that: On June 10, 1932, the Washington Mechanics Savings Bank operated a branch on Georgia Avenue in the District. When the bank opened for business on that day, money had been distributed from the vault to the cash drawers of four tellers, including Elgin, mentioned in the indictment. At about eleven o'clock five men came into the bank. One stood in the doorway, apparently as a lookout; two drew guns and ordered the employees — there were no customers in the bank at the moment — to hold up their hands; two leaped over the counter and herded all of the employees — seven, including the bookkeepers — into a rear room and compelled them to lie face downward on the floor; one of the robbers then held a bag into which the others loaded the money from the tellers' drawers; the five men then left the bank in single file and drove away in an automobile which had been parked at the curb around the corner. After the robbers had left, a customer, one Jacob Gritz, seeing them leave, entered the bank, saw no one there, but on walking into the rear room found the employees on the floor as above described. A checkup disclosed $9,030.36 missing, of which $3,024.23 had been taken from the drawer of Elgin. Flynn was identified by Elgin and by Gritz; Foley was identified by a bank teller, Richard S. Sanderson; Neufield was identified by Wallace F. Randolph and Sarah E. Randolph, his wife, who drove to the bank on the morning in question, arriving while the robbery was in progress. They saw the robbery occur, Randolph from near the door of the bank, Mrs. Randolph from the car through the bank window. Mrs. Randolph identified Rubin also. Both of them saw the stuffing of the money into the bag as above described, and both saw the five men leave the bank.

The defendants were indicted on February 1, 1933. Foley was arraigned June 19, and Neufield, Flynn and Rubin, September 21, 1939; each pleaded not guilty. The case was called for trial November 15, 1939. The lapse of time between the indictment and the arraignment and trial of the defendants was due, according to the record, to the fact that Neufield and Flynn were in the meantime serving time in New York for another offense. Where Foley and Rubin were and why they were not sooner arraigned and tried does not appear. According to statements made at the commencement of the trial in the instant case by counsel for Neufield, one Spencer Waldron, apparently the fifth man involved in the events at the bank on June 10, 1932, had, at a date not stated but apparently not long after June 10, pleaded guilty to a charge describing the same offense as is the subject of this case, and had been sentenced to imprisonment, and had for several years prior to the arraignment and trial of the present defendants been confined in Alcatraz.

When the instant case was called for trial Neufield and Flynn each moved for a continuance. Neufield moved for compulsory process against Spencer Waldron. Each defendant moved at the close of all of the evidence for a directed verdict of not guilty. Each requested a view by the jury. Each moved for an arrest of the judgment. All of these motions were denied and out of these rulings by the trial court arise the questions presented on this appeal. We shall discuss each topic separately, stating thereunder such further facts as are necessary to an understanding of the points raised.¹

I

The motions for a continuance. By Neufield. When the case was called for trial a statement, the substance of which follows, was made in behalf of Neufield by his counsel Solomon: Pursuant to an arrangement whereby the District Attorney was to notify Solomon at least ten days prior to the trial of the date fixed for its commencement, William S. Tarver, the Assistant United States Attorney in charge of the case, telegraphed Solomon at his office in New York on November 6, 1939, that the case would be assigned for trial on November 15. Solomon was out of the city and in consequence did not receive the telegram until November 8. Solomon and Neufield (who was apparently at large on bail) then attempted unsuccessfully to locate the latter's witnesses. Between the date of the filing of the indictment, February 1, 1933, and the time of fixing of bail for Neufield, September 21, 1939, he had been confined in Sing Sing Prison. This increased the difficulty of locating witnesses. Process servers were out and also a private detective to help locate them. In the event of a continuance, in the opinion of Solomon, he would be able properly to prepare the case and locate the witnesses. Neufield had waived extradition. It appears from the record that Solomon had represented Neufield since his arraignment, September 21, 1939. The gist of the motion for continuance was an alleged need of further opportunity to prepare the defense of the case and to locate witnesses and to procure their attendance through compulsory process; the guarantee of the Sixth Amendment that an accused in a criminal prosecution "shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . .," was urged.

The granting or refusal of a continuance is a matter of discretion of the judge to whom application is made. Avery v. Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Isaacs v. United States, 1895, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229; Tomlinson v. United States, 1937, 68 App.D.C. 106, 93 F.2d 652, 114 A.L.R. 1315, certiorari denied, 1938, 303 U.S. 646, 58 S.Ct. 645, 82 L.Ed. 1107. Therefore, under elementary principles of review, a trial court's ruling granting or refusing a continuance will not be reversed except for abuse of discretion. A party seeking a continuance must make a showing that the same is reasonably necessary for a just determination of the cause. If the continuance is sought for the purpose of securing the attendance of witnesses, it must be shown who they are, what their testimony will be, that it will be relevant under the issues in the case and competent, that the witnesses can probably be obtained if the continuance is granted, and that due diligence has been used to obtain their attendance for the trial as set. These propositions are so elementary as to require the citation of nothing but general authorities. See 12 American Jurisprudence, pages 448-471, inclusive, especially Sections 5, 9, 23, 24, 28; 16 Corpus Juris, pages 450-512, inclusive, especially Sections 829, 831, 846, 892, 921, 925; 22 C.J.S.Criminal Law pp. 737-837, inclusive, especially §§ 486, 488, 491, 502, 513.

In the instant case no showing was made that during the time between the arraignment on September 21, 1939, and the date of the trial, November 15, 1939, Neufield's counsel Solomon was excusably prevented from searching for witnesses or otherwise preparing the defense of the case. No showing was made as to the identity of the proposed witnesses or as to the nature, relevancy and competency of their testimony, or that they could be obtained if the continuance was granted. In these circumstances and in view of the further fact that the ten days' notice requested by Neufield's counsel of the date of trial was given, we cannot say that the trial judge must reasonably have concluded that the showing for a continuance was sufficient, and we cannot, therefore, say that he abused his discretion in refusing the continuance. Indeed, we think the showing for continuance was clearly insufficient. If, under the circumstances set out, a continuance must be granted, there will be no end to delays in criminal cases. Moreover, it was not made to appear in Neufield's motion for a new trial that any harm came to him through the refusal of the continuance. While the motion in general terms charged error in not granting the continuance, it made no particularization of any material witnesses or testimony that...