Smith v. United States
| Decision Date | 12 May 1964 |
| Docket Number | No. 17449.,17449. |
| Citation | 331 F.2d 265 |
| Parties | Harry R. SMITH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Anna R. Lavin, Chicago, Ill. (Maurice J. Walsh, Chicago, Ill., with her on the brief), for appellant.
Leo E. Gross, Asst. U. S. Atty., Des Moines, Iowa (Donald A. Wine, U. S. Atty., and Philip T. Riley, Asst. U. S. Atty., Des Moines, Iowa, with him on the brief), for appellee.
Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.
Harry R. Smith, the appellant, and Frank Anthony Dalia, a/k/a Anthony Walters, were indicted by a grand jury in the Southern District of Iowa, charged with a violation of 18 U.S.C.A. § 2113 (a), in that on or about October 22, 1962, they, with the intent to commit a felony, to-wit, larceny, entered the Altoona State Bank, Altoona, Iowa, the deposits of said bank being insured by the Federal Deposit Insurance Corporation. Smith was enlarged on bail in the amount of $40,000. Dalia, whose bail was reduced by this court to $20,000, was also released. Subsequently Dalia was charged with a similar offense in the District of Indiana for which he did not furnish bail. On April 25, 1963, Dalia entered a plea of guilty to the Indiana charge and under Rule 20 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., also entered a similar plea to the Iowa offense, both pleas being made in the United States District Court for the District of Indiana. On May 2, 1963, Dalia was sentenced to concurrent terms of 12 years on each of the two offenses.
Appellant Smith entered a plea of not guilty to the charge contained in the indictment in the Southern District of Iowa, was tried before a jury, found guilty and on June 27, 1963, was sentenced to confinement for a period of 20 years. Smith has appealed to this court, asking that the judgment of conviction be reversed. He raises five points of alleged error as follows:
A résumé of the evidence upon which the jury found Smith guilty is necessary to an understanding of appellant's claims of error and a weighing of his claims of prejudice thereby.
The evidence established that sometime between 8 p. m. Sunday, October 21, 1962, and the early morning of October 22, 1962, a forcible entry was made into the Altoona State Bank and into a night depository safe located therein. Approximately $6,000, of which $1600 to $1800 was in currency, was taken from the safe.
At shortly after 1:15 a. m. on October 22, 1962, Iowa State Patrol Officer Calvin White was proceeding in an easterly direction on Highway No. 90 from Altoona, Iowa, to the Duffield Farm, where he was to deliver some papers. In driving through Altoona he passed and noticed the Altoona State Bank, part of a new shopping center, located on the south side of Highway 90 but he proceeded on without stopping. After completing his business at the Duffield Farm and while he was headed back west toward Altoona on Highway 90, he noticed a car coming south on a gravel road which intersects with Highway 90. This car was a 1957, 1958 or 1959 DeSoto, dark colored, and bore Illinois license plates. There was and had been no traffic between the Duffield Farm on Highway 90 and the gravel road on which the DeSoto was traveling in a southerly direction. Officer White turned north onto the gravel road, pulled up directly opposite the DeSoto and directed the driver thereof to "hold it" or words to that effect. The driver of the DeSoto did not answer or comply with the request. He drove rapidly onto Highway 90 and turned east, at times attaining a rate of speed estimated in excess of 100 miles per hour. Officer White backed onto the highway and began pursuit, following the other car at a distance of approximately 300 to 400 feet.
At one point less than a half mile from the beginning of the chase he observed an object "moving" in the middle of his side of the road. He swerved north to avoid it. It had not been seen there when he drove west after completing his business at the Duffield Farm and other than his patrol car and the car he was pursuing there had been no traffic on that portion of the highway during that time. Shortly after swerving to avoid the moving object, he noted what appeared to be paper or something of that nature flying around in the air. After some distance both vehicles overtook and passed another car bearing an Ohio license. The chase ended after about five and a half miles of high-speed driving with the DeSoto going out of control on a north curve, traveling some 580 feet from the point it left the highway and ending overturned on its top. The occupants of the DeSoto were identified as the appellant, Harry R. Smith, Paul Smith, his brother, who was the driver and who was killed in the accident, and Anthony Dalia, the appellant's co-defendant herein. Appellant and Dalia were badly injured.
After they had been given first aid and efforts had been made to revive Paul Smith, appellant and Dalia were removed by ambulance to a hospital in Des Moines. Officer White then returned to the area where he had observed the object in the road, which turned out to be a Navy-type sea bag containing a sledge hammer, pry bars and other tools. A search of the highway over which the pursuit had continued resulted in finding currency, including a $100-bill, some 50's and smaller bills with an Altoona State Bank deposit slip attached by paper clip. There were also found several other Altoona State Bank night deposit envelopes containing checks and currency identified as having been deposited in the Altoona night depository safe during that portion of the week-end prior to the break-in. These were mainly found west of the Duffield Farm but all within one and one-half miles to two miles of the beginning of the route of the chase. In the opinion of expert witnesses, tools found in the green Navy-type sea bag had been used on the doors of the Altoona State Bank and its safe.
Appellant's first three claims of error spring from the calling of Smith's co-defendant, Dalia, as a "Court's witness", the testimony elicited from him, as well as the fact that on numerous occasions he refused to answer, claiming his privilege under the Fifth Amendment. Near the close of the government's case the United States Attorney requested "that Mr. Dalia be called as the Court's witness for the purpose of cross-examination in view of the fact that he was named in this indictment." Defendant objected "to any witness being called as a Court's witness without some basis or foundation". The government's attorney then stated:
The government's motion was granted. Dalia was called as a "Court's witness", his testimony being set forth in the margin.1
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The practice in criminal cases of calling someone as a court's witness, while seldom used and not particularly desirable, is recognized as proper in both state and federal courts. United States v. Lutwak, 7 Cir., 1952, 195 F.2d 748, 754-755; Annot., 67 A.L.R.2d 538. The exercise of the right or rule is a discretionary matter with the trial court and only for an abuse of that discretion resulting in prejudice to the defendant will the trial court be judged in error and a conviction reversed. The result of one being called as a court's witness is not too dissimilar from that of having a witness adjudged a hostile or a surprise witness. The effect is that neither party to the suit may be held responsible for the testimony of the witness and both of course may exercise the privilege of cross-examination. Probably the leading and most cited case in connection with the calling of a witness by the court is Litsinger v. United States, 7 Cir., 1930, 44 F.2d 45, at page 47, wherein the court stated:
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