Tomlinson v. United States

• Citation: 93 F.2d 652
• Decision Date: 22 November 1937
• Docket Number: No. 6987.,6987.
• Parties: TOMLINSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 F.2d 652 (1937)

TOMLINSON et al. v. UNITED STATES.^*

No. 6987.

United States Court of Appeals for the District of Columbia.

Decided November 22, 1937.

Rehearing Denied December 13, 1937.

James A. O'Shea, John H. Burnett, and Alfred Goldstein, all of Washington, D. C., for appellant Tomlinson.

Francis J. Kelly, of Washington, D. C., for appellant Pratt.

Leslie C. Garnett, U. S. Atty., and Samuel F. Beach and Charles B. Murray, Asst. U. S. Attys., all of Washington, D. C.

Before ROBB, GRONER, and MILLER, Associate Justices, and WHEAT, Chief Justice of District Court.

MILLER, Associate Justice.

The appellants were convicted in the District Court under an indictment charging them and Charles Henry Bass with the crime of robbery. They challenged the sufficiency of the indictment on the grounds that there was a misjoinder of offenses and that it charged no offense against appellants.

The offense of robbery is defined by the statute of the District of Columbia, as follows: "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." Section 810, D.C.Code 1924; section 34, Tit. 6, D.C. Code. 1929.

The indictment, containing a single count, charged, in part, the commission of the offense "by force and violence, and against resistance, and by putting in fear, and by sudden and stealthy seizure and snatching." This was a proper and sufficient charge to support the conviction. Turner v. United States, 57 App.D.C. 39, 16 F.2d 535.

The appellants concede that the indictment charged the offense of robbery, but insist that it contained additional language which made it defective. The additional language complained of reads as follows: "* * * said defendants being then and there armed with a certain pistol held in the hand of the said Phillip John Pratt. * * *" At most this was surplusage and was so regarded by the lower court in overruling a demurrer to the indictment. See United States v. Noveck, 271 U.S. 201, 203, 46 S.Ct. 476, 70 L.Ed. 904, Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793; Clifton v. United States, 54 App.D.C. 104, 295 F. 925; Miller v. United States, 6 App. D.C. 6. The evidence clearly disclosed that one of the defendants was armed with a pistol at the time of the robbery. The allegation of the means used for the commission of the offense, while unnecessary under present-day simplified pleading (Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861), was entirely proper and was in no way prejudicial to the defendant.

It was further contended that the language last quoted was intended to bring the indictment within the terms of sections 116a and 116b, Tit. 6, D.C.Code Supp. II, sections 1 and 2, Act of July 8, 1932, c. 465, 47 Stat. 650, in order to increase the punishment which might be imposed in the event of a verdict of guilty. The lower court expressly declined to consider it for that purpose, so there is no reason for complaint in any event. There is nothing in the indictment to indicate such a purpose upon the part of the government. We are concerned only with the indictment itself. It is sufficient on its face and that is enough.

After the government had made its opening statement to the jury, Bass, a codefendant, was permitted to change his plea from not guilty to guilty and his case was thereupon referred to the probation officer. Appellants claim that this was done in the presence of the jury and that they were prejudiced thereby. The government contends that the change of plea and reference to the probation officer occurred out of the presence of the jury. The record is ambiguous regarding the matter. A general exception was taken to the action of the court in permitting the change of plea — the ground of the exception not being stated. In his charge to the jury, to which no exception was taken, the trial judge pointed out that the case as to Bass had been disposed of "upon his plea of guilty in this court." Bass testified for the government and fully and clearly revealed his participation in the crime. An application by a defendant to change his plea is addressed to the sound discretion of the court, and the action of the court will not be disturbed, unless there has been an abuse of that discretion. Assuming in the present case that Bass' change of plea was made in the presence of the jury, no abuse of discretion was shown upon the part of the court below. Brown v. United States, 56 App.D.C. 326, 13 F.2d 298.

Error was assigned on account of the refusal of the court to exclude the testimony of witness Smallwood concerning conversations with Tomlinson which occurred three or four months before the commission of the crime. This testimony was to the effect that Tomlinson solicited Smallwood to rob the same man at the same place as was later done by Bass and Pratt, who were jointly charged with Tomlinson; and, moreover, that Tomlinson outlined to Smallwood a plan for the commission of the proposed crime which conformed closely to the plan eventually followed. It is obvious that this evidence tended strongly to prove Tomlinson's plan, purpose, and intent. We have held that evidence of this character is admissible, even though it consists of proof of another crime committed by the defendant, if it is so connected with the crime charged as to establish a common scheme or purpose, so associated that proof of one tends to prove the other. Borum v. United States, 61 App.D.C. 4, 56 F.2d 301, 303, certiorari denied Logan v. United States, 285 U.S. 555, 52 S.Ct. 459, 76 L.Ed. 944. In that case we said: "The ground on which such evidence is allowed is that both crimes are connected with a single purpose and in pursuance of a single object."

Smallwood's testimony revealed a single purpose and the pursuance of a single object on the part of Tomlinson. Clearly there is even less reason for excluding it than if it had proved the commission of another crime.

On direct examination Tomlinson testified that "he met Smallwood one time when he was brought into Mr. Tomlinson's office by a client and he was asked to represent Smallwood if he ever got into trouble; that he gave Smallwood one of his cards." No further testimony was given by the witness concerning the "client," and no disclosure made of conduct or transactions of the client. On cross-examination Tomlinson was asked the name and business of his client and required by the court to answer, over his objection and claim of privilege. This did not constitute error. Appellant, himself, opened the inquiry on direct examination, and thus subjected himself to searching cross-examination. Reagan v. United States, 157 U.S. 301, 305, 15 S.Ct. 610, 39 L.Ed. 709; Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 44 L.Ed. 1078. Questions as to the name and business of a person referred to voluntarily, on direct examination, are routine, preliminary questions, on cross-examination. Generally speaking, a disclosure of the name and occupation of a client does not constitute the violation of a privileged communication. See Chirac v. Reinicker, 11 Wheat. 280, 295, 6 L.Ed. 474; Catalog Ass'n v. A. Eberly's Sons, 60 App.D.C. 216, 50 F.2d 981; Ann.Cas. 1913A, 28, 29; 28 R.C.L. 563, § 153; Thornton, Attorneys, § 124. The case of Elliott v. United States, 23 App.D.C. 456, relied upon by appellants, is an example of the type of exceptional situation under which such a disclosure would violate the privilege. In that case the attorney had already revealed the fact that he had prepared for the client in question a memorandum for a will. To reveal his name, therefore, would disclose the whole relationship and the facts which he had solemnly promised not to disclose. The rule in the Elliott Case is properly limited to cases involving such exceptional circumstances. See 5 Wigmore, Evidence, 2d Ed., § 2314; United States v. Lee, C.C., 107 F. 702. To apply it to prevent normal cross-examination in such a case as the present would unnecessarily encourage deception, and defeat the purpose of cross-examination. "The court has a right to know that the client whose secret is treasured is...