United States v. Pennix

• Decision Date: 15 January 1963
• Docket Number: No. 8724.,8724.
• Citation: 313 F.2d 524
• Parties: UNITED STATES of America, Appellee, v. Edwin Wallace PENNIX, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

313 F.2d 524 (1963)

UNITED STATES of America, Appellee, v. Edwin Wallace PENNIX, Appellant.

No. 8724.

United States Court of Appeals Fourth Circuit.

Argued November 7, 1962.

Decided January 15, 1963.

Emmet J. Bondurant (Court-assigned counsel) Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., on the brief for appellant.

Roy G. Hall, Jr., Asst. U. S. Atty. (William H. Murdock, U. S. Atty., on the brief) for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

At approximately 11:30 o'clock on the morning of March 8, 1962, The American Federal Savings & Loan Association, 1913 East Market Street, Greensboro, North Carolina, insured by The Federal Savings & Loan Insurance Corporation under certificate No. 4255, was robbed of $930.15 in cash at gun point. The manager was shot in the hand during the course of the robbery.

Edwin Wallace Pennix, appellant here (who will be referred to as Pennix or defendant), Alfred Neal and Floyd Douglas Patterson, after waiver of formal indictment, were charged in a two-count information with robbery of a federally insured savings and loan association. Neal and Patterson entered pleas of guilty and testified for the Government at the jury trial of Pennix on his plea of not guilty.

At the conclusion of all the evidence, the District Court dismissed Count Two of the information which charged a violation of 18 U.S.C. 2113(d) (putting the lives of certain persons in jeopardy by the use of a dangerous weapon during the robbery) and submitted for jury determination the guilt or innocence of Pennix on Count One, which charged a violation of 18 U.S.C. 2113(a) (robbery of the named federally insured institution by force and violence). Pennix was found guilty and was sentenced to a term in prison. We think the judgment of conviction should be set aside and Pennix awarded a new trial.

The testimony of the confessed armed robber, Alfred Neal, is substantially as follows. On the morning of the robbery, he went to the house where Pennix resided with his mother to borrow money from Pennix with which to pay an overdue electric light bill in the amount of $6.51. Neal took with him a revolver intending to pledge it as security for the repayment of the prospective loan. Pennix proposed to Neal that he, Neal, rob The American Federal Savings & Loan Association so that both would have money. It was suggested by Pennix that Neal obtain the assistance of another man to insure success. Pennix drove Neal to Patterson's house, had Neal bring Patterson out to the automobile and proposed to Patterson that he assist Neal in the robbery. Pennix instructed Neal and Patterson to purchase a loaf of bread and thus acquire a paper bag in which to carry the robbery loot. After making the purchase, they parked in the vicinity of the Savings & Loan Association office and Neal and Patterson left the car. However, they lost their nerve and returned to the vehicle in which the three then drove away. Pennix became angry and insisted that they should go through with the plan. They returned, Pennix again let Neal and Patterson out of the car a short distance from the Savings & Loan Association and drove around to the highway cloverleaf at the rear of the Association office. Neal and Patterson perpetrated the robbery, Neal handling the gun and obtaining the money and Patterson apparently acting as a lookout. When the gun was discharged both men hurriedly left the scene, Patterson returned to the defendant's car and he and Pennix made a hasty getaway before Neal could join them. Neal crawled under a nearby house and counted the money which he had taken. Patterson was later taken into police custody. Neal, realizing he was about to be apprehended, surrendered both himself and the money. Neal and Patterson, when questioned, implicated Pennix who was then arrested.

Neal's recital of events following the time when Neal and Pennix first contacted Patterson on the morning of the robbery was corroborated by Patterson.

At the trial, Pennix, who was represented by privately retained counsel, took the witness stand in his own behalf and denied all complicity in the robbery. He testified that while he was in bed, Neal came to his home early on the morning of March 8, roused him from sleep and requested a loan of $6.51 with which to pay an overdue light bill. These two had been acquainted for a month or more and Neal had called at the Pennix home on occasions in company with another acquaintance of Pennix. After lending Neal the money, Pennix drove him to downtown Greensboro to permit him to pay the light bill. Pennix was driving his two-tone 1958 Oldsmobile convertible which he had purchased on a deferred payment plan. He was partially paralyzed but could drive very well. During the drive, Neal stated that he was in desperate need of money and suggested that he and Pennix rob The American Federal Savings & Loan Association. Pennix refused and Neal requested that they pick up his friend, Patterson, which they did. After driving around for a period of time, during which Neal and Patterson discussed the robbery, Pennix let them out of the car at their request. He then proceeded past the Association office and onto the cloverleaf to the rear. As he was driving down the cloverleaf and applied the brakes, his motor stalled as it often did. After some difficulty, he was able to get the motor started and to drive away. He denied that Patterson rejoined him or that he had driven away at a speed greater than normal.

Witness Ellison, who was working in the vicinity, testified that he observed a car of the same general description as the Pennix car and occupied by one person, parked on the cloverleaf but he could identify neither the car nor the driver. He did say, however, that shortly before he heard of the robbery another unidentified person entered the car and the two drove away at a fast rate of speed. Witness Johnson, who was driving a small truck and who was personally acquainted with Pennix, testified that he saw the defendant sitting in his car on the cloverleaf near the rear of the Association office and that he waived to Pennix as he drove by. According to the defendant's own admission, he was in his own car on the cloverleaf at about the time of the robbery but he offered an explanation of his presence there. The primary points of conflict between his testimony and that of Ellison are the defendant's denials that another person entered his car and that the car was then driven away at unusually high speed.

The United States Attorney vigorously cross-examined Pennix, concluding that examination with the following questions and answers:

"Q. Have you ever been caught and convicted of any offense since being here Greensboro?

"A. I have been tried.

"Q. How many times?

"A. I don\'t know, it has been quite a few.

"Q. You mean by that it is so many that you don\'t know?

"A. I have been arrested quite a few times.

"Q. How many times have you been arrested?

"A. I don\'t know. I admit my record.

"Q. You admit your record?

"A. That\'s right.

"Q. Well, let me see, how about 30 times, would that sound about right?

"A. I don\'t know. You have got it down there.

"Q. Well, do you think it is any more than that?

"A. I don\'t know."

The government attorney commented, "That's all," and the court directed Pennix to "Come down." Defendant's counsel interposed no objection to this line of questioning.

After charging the jury at length as to the manner of determining the credibility of all witnesses, and after referring particularly to the defendant who testified in his own behalf, the District Court added:

"Where a witness admits he has a criminal record, you should take that into consideration and his demeanor upon the witness stand for the purpose of determining whether or not he is telling the truth in order that you can decide what weight you will attach to his testimony." (Emphasis supplied.)

There was no objection to this charge.

On this appeal Pennix contends that the District Court erred in permitting his cross-examination as to prior arrests, the error was so plain and so affected his right to a fair trial by an impartial jury that it should be noticed by this court, even in the absence of objection, and he should be awarded a new trial.

Generally a specific objection is required before a ruling of the trial court may be attacked as error.¹ But this rule is neither absolute nor inflexible. The appellate courts are expressly authorized to notice plain errors or defects affecting substantial rights even though they were not brought to the attention of the court by timely objection.² In Breedin v. United States, 73 F.2d 778, 780 (4th Cir., 1934), this court said: "* * * We exercise the power to notice plain error not assigned only where necessary to prevent a miscarriage of justice; * * *." The obligation of a reviewing court was discussed by the Supreme Court of the United States in Kotteakos v. United States, 328 U.S. 750, 763-765, 66 S.Ct. 1239, 1247-1248, 90 L. Ed. 1557 (1946):

"Some aids to right judgment may be stated more safely in negative than in affirmative form. Thus, it is not the appellate court\'s function to determine guilt or innocence. Citations omitted. Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out. Appellate judges cannot escape such impressions. But they may not make them sole criteria for reversal or affirmance. Those judgments are exclusively for the jury, given always the necessary minimum evidence legally sufficient to sustain the conviction unaffected by the error. Citations omitted.

* * * * * * "* * * And the question is, not were they the jurors right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury\'s decision. The crucial thing is the impact of the thing done wrong

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