United States v. Fox, 313.

• Decision Date: 20 June 1938
• Docket Number: No. 313.,313.
• Citation: 97 F.2d 913
• Parties: UNITED STATES v. FOX et al.
• Court: U.S. Court of Appeals — Second Circuit

97 F.2d 913 (1938)

UNITED STATES v. FOX et al.

No. 313.

Circuit Court of Appeals, Second Circuit.

June 20, 1938.

Samuel Segal, of New York City, for appellants.

Vine H. Smith, of Brooklyn, N. Y., for the United States.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment of conviction for robbery of the messenger of a national bank while in performance of his duty. The chief point raised is whether there was enough evidence to support a verdict, and this is limited to the identification of the two accused as the robbers. A subsidiary point is the limitation of the defendants' cross-examination. The undisputed facts were as follows. At about 10 o'clock on the morning of June 19th, 1936, Francis Gray, a messenger employed by the Farmingdale National Bank of Farmingdale, L. I., received on its behalf from the post office of that village $12,500 in currency. While walking south on the west side of Main Street in that village towards the bank building, he was struck down from behind, pushed into a motor car standing along the curb, robbed while half conscious and thrown out in the outskirts of the village. Nobody questions that whoever took part in this robbery was guilty under the three counts of the indictment here in question. Main Street runs from the railroad south to Conklin Street, at the corner of which the bank stands; a little more than half way down, a lane runs off to the east. A motor car stood at the west curb of Main Street, facing south about 60' north of this lane. As Gray approached this spot he noticed a man, whom he later identified as Fox, standing with his back to the street, who, as he approached, walked towards him on the inside and edged him towards the curb; it was just as the two were passing that Gray was struck down. The driver of the car, Benintende, a co-defendant, pleaded guilty, but did not take the stand; he was identified as the driver by several people, and we do not understand that his connection with the robbery is disputed. As soon as Gray had been pushed into the back seat, the car started down Main Street, turned to the left through the lane for a distance of about 250', then to the right into Conklin Street and so out of the village.

Of the foregoing facts all are admitted except Gray's conclusion that the man whom he identified as Fox edged him towards the curb. The other evidence against Fox was as follows. A witness, Polak, was walking west through the lane and had nearly reached its corner with Main Street when the car passed him so close that he had to flatten himself against a building on the north side to escape being run over. As it passed he saw a man in the back seat, whom he identified as Fox, looking down toward the floor in a posture proper to one who was holding down another at the point of a revolver. Gray swore that he was so held by one of the robbers. On the next day, the 20th, Fox and Benintende together bought a new motor car in Manhattan for $812.50 paid in cash: on the 25th, six days after the robbery Fox bought a suit of clothes in the Bronx: on the 30th another suit in the same place in company with Miller who also bought one. After his arrest Fox explained this sudden access of means by saying that he had been playing policy: he had been on relief before the robbery.

The evidence against Miller was this. One, Lammers, was a druggist whose shop was on the west side of Main Street, about 150' north of the place of the robbery. At some time during the half hour before it happened, he was standing at the door of his shop looking into the street. Two motor cars were standing side by side, just north of him, and his attention was directed to a third car which had to pass around both, and which seemed to him to be doing so at a dangerous speed. In the front seat of this car were three men — the one in the center, leaning forward, he identified as Miller. The identity of this car Lammers fixed because he noticed that it had a cardboard license plate bearing the letter "Q". The robbers' car was afterwards found ditched outside the village; it had been stolen and when found it bore a forward license plate of cardboard with that letter on it....