Before FRANK, MEDINA and HINCKS, Circuit Judges.
The defendant claims error in the admission of the testimony of an employee of the Prairie Village National Bank of Kansas that she had seen the defendant, whom she identified in open court, in the Bank on November 23, 1951, with a rifle when "dressed in white overalls and his hunting cap pulled down over the brow and his ears stuck up under the cap" actively participating in the robbery of the Bank. A preliminary objection was overruled and the testimony was received without specific limitation to any particular issue in the case. As the testimony proceeded a renewal of the objection was overruled with a caution by the Judge to the District Attorney in the hearing of the jury "since the defendant is not on trial at this time for this alleged robbery and the jury is not here to determine his guilt or innocence of that robbery, and this evidence is being received for a very limited purpose, that your inquiry into these matters be not too extensive." The testimony, all of which was reasonably restrained, was then speedily concluded and defendant's counsel moved to strike and for mistrial. These motions were denied, and a motion for a special instruction that the jury be instructed to disregard it was denied "at this time." The government then rested its case.
Thereafter, in the absence of the jury, the defendant again moved for mistrial on the ground that the testimony as to the bank robbery was irrelevant and prejudicial because of its inflammatory effect. This motion also was denied and in the colloquy which ensued the Judge pointed out that the testimony had been admitted on the question of motive which in turn bore on the issue of premeditation and the defendant's claim of self-defense.
These rulings we hold to have been in all respects proper. Certainly it was admissible for the government to prove that the defendant had a motive to shoot his way out of the hotel in which he found himself entrapped: such a motive had a natural tendency both to prove premeditation and to negate a possible contention that the defendant shot in self-defense. The existence of such a motive depended upon proof of the defendant's knowledge that he was wanted by the authorities for a serious crime: otherwise incentive would be lacking for adopting such a drastic means of effectuating escape. And testimony that the defendant had actually participated in a bank robbery was competent for its tendency to prove that at the time of the shooting he knew that he was wanted. The testimony that he participated in the earlier robbery without effective disguise afforded some ground for inference that he knew, or at least feared, that he could be identified as a participant. Up to this time in the trial there had been no concession by the defense that the defendant at the time of the shooting knew that he was wanted for a felony. And as the judge pointed out there was "no way of bringing it home except to show that by reason of acts of the defendant he knew or had reason to know that he was on July 26, 1952, sought as a fugitive from justice."
It thus appearing that this testimony had probative force on the defendant's motive which in turn had powerful bearing on the contested issues of premeditation and of self-defense, the case here must be distinguished from those in which proof of prior crime has no probative effect on any open issue, such as Boyd v. United States, 142 U.S. 450, 12 S. Ct. 292, 35 L. Ed. 1077; United States v. Sager, 2 Cir., 49 F.2d 725; and Hargett v. United States, 5 Cir., 183 F.2d 859. Instead, the case here is governed by doctrine recognized in such cases as United States v. Pugliese, 2 Cir., 153 F.2d 497; United States v. Glory Blouse & Sportswear Co., 2 Cir., 158 F.2d 880.
In United States v. Krulewitch, 2 Cir., 145 F.2d 76, 80, 156 A.L.R. 337, it was recognized that evidence of prior misconduct by the defendant had been improperly admitted because, although rationally relevant, its "cost" was "more than commensurate with the dangers it involved" in that "it greatly tended to muddle the jury, and to lead them to convict the accused because he was in general so loathsome." The rulings here were not inconsistent with that doctrine. For here motive was highly important for its bearing on the issues of self-defense and premeditation, upon the proof of which the possibility of a death sentence depended. It can fairly be said that the exclusion of this testimony might have been of dear "cost" to the attainment of justice. It was not until the summation that it was conceded that the defendant entered the hall knowing that he was wanted. It is highly likely that without this evidence the concession would not have been made even then. And even then it was not conceded that the defendant was wanted for a serious crime, - a fact which would bear heavily on the issue of motive. On the other side of the equation posed by the Krulewitch case, everything possible was done to prevent confusion and improper prejudice from the testimony. Thus the only reference to this testimony in the summation of the District Attorney was the following:
"As he got down to the fourth floor landing, this man, who under the name of Gerhard Puff was wanted in Kansas for a serious crime, did he not give some thought to what his plan was, and that was to escape this place, and to do it by whatever means were necessary? That is what he had the gun for, and people do not carry guns unless they have some idea they might need to use them.
"We have shown in this case and I think it is only fair to state the limited purpose of it, enough of the circumstances that the Johnson County Bank and Trust Company to show that the man that was wanted was this man, this Puff, and he, therefore, must have known that he was the man that was wanted, and that it was for a serious crime that he was wanted, one for which the punishment might well be such that a man would take some risks in escaping, that he would go down the stairs and carry a gun with him if he thought the F.B.I. might be closing in."
And the judge's charge to the point was confined to the following:
"You have heard testimony concerning the robbery of November 23, 1952, of the Johnson County National Bank and Trust Company of Prairie Village, Kansas, and that the defendant was suspected of participation in the commission of this crime, and that a warrant for the arrest of the defendant for this alleged participation issued from the United States District Court in the State of Kansas.It is the Government's contention, and with what force and effect it is for you to say, that proof of this robbery and of the defendant's alleged participation in it, if you believe that he did so participate, will tend to establish that at the time the defendant is alleged to have unlawfully fired the fatal shots he did so intentionally and with a purpose to evade arrest for the commission of that robbery. This testimony was received, not for the purpose of determining whether in fact the defendant did commit this robbery, for he is not on trial for that crime, but solely and for the very limited purpose of tending to establish a motive on the part of the defendant for the alleged unlawful shooting and killing of the deceased, as such motive bears on his intent.This testimony may be considered by you, if you believe it, and given such weight as you deem it entitled to receive, as a circumstance bearing upon the defendant's motive at the time of the alleged unlawful shooting and killing. It is only on this question of motive that you may consider this testimony. You may not consider it for any other purpose, for the fact that the defendant may or may not be guilty of another crime is no evidence of the fact of his guilt of the crime for which he is now on trial. You will come to a consideration of defendant's motive only if you have been first convinced beyond a reasonable doubt that the defendant did in fact unlawfully assault, shoot and kill the deceased."
Nor is there room for serious contention that the jury relied upon the evidence of the bank robbery as proof that the defendant shot the deceased. Quite apart from the concession in the defendant's summation, the fact that defendant shot the deceased was established by an overwhelming weight of evidence. Altogether it is abundantly clear that the only effect of the testimony objected to was for its impact on the issue of premeditation and motive for which it was properly received. If the defendant was prejudiced by the admission of the testimony the prejudice derived not from error but as the inevitable consequence of admissible testimony as to his own state of mind as evidenced by his own prior conduct. We reiterate our conclusion that this claim of error has not been sustained.
The defendant upon appeal also claims as error the admission of an indictment filed in the United States District Court for the District of Kansas on January 30, 1952, charging the defendant and another with the robbery of the Prairie Village Bank of Kansas on or about November 23, 1951. To the admission of this document the defendant had also interposed timely objection. This indictment was offered through the Clerk of the Kansas court who was first asked if there was on file in the Kansas court an indictment charging the defendant "with the commission of felony in violation of the laws of the United States." The defendant objected on the ground that the question was immaterial, irrelevant and inflammatory. The objection was overruled and the witness answered "there is an indictment on file in our office." The witness then without the intervention of another objection testified that the indictment was filed on January 30, 1952, that a warrant issued pursuant to the indictment on January 31, 1952, and that the warrant was outstanding on July 26, 1952. She was then asked whether the indictment and the complaint charged the commission of an offense on the same date. To this an objection was sustained "as to form." The district attorney then asked "does that indictment charge that an offense was committed on a certain date in the District of Kansas?" The judge in line with his prior ruling just noted interposed with an observation that the District Attorney was "calling for the contents of a document which is not in evidence as such" and, further, that "what the indictment charges is best proved by the contents of the indictment * * * and not by this witness's conclusion as to what it contains." The District Attorney then offered the indictment itself in evidence, the defendant renewed his objection, and the judge without qualification or limitation said "your objection is overruled." The indictment was then read to the jury.
It will be observed that at this stage the state of the record was unexceptionable. Reading the incident in its proper context on the record it is plain that the District Attorney sought to prove that the deceased on July 26, 1952 had lawful authority to arrest the defendant because (1) there was a valid warrant of arrest outstanding and (2) that the defendant's arrest was sought "for any felony cognizable under the laws of the United States." For such proof would establish the authority of the defendant as an F.B.I. agent to accomplish the defendant's arrest under 18 U.S.C.A. § 3052. And the authority of the agent was highly material to bring the case within the reach of 18 U.S.C.A. § 1114 which denounced the killing of an F.B.I. agent "while engaged in the performance of his official duties, or on account of the performance of his official duties". Since the indictment was thus admissible on the issue of the agent's authority there was no error in the Judge's ruling. Certainly, at that stage it was not incumbent on the Judge to suspend the progress of the trial while he considered the impact of the document on all the other open issues of the case and then and there to qualify and limit his ruling.
After the reading of the indictment defendant's counsel moved for a mistrial on the ground that "the reading of its contents to the jury had so prejudiced the defendant in the eyes of the jury, and had a tendency to so inflame their passions and prejudice as to divert their attention from the main issue in this case * * * that is the charge as to which the defendant is on trial * * * that the defendant cannot get a fair trial." This motion was promptly denied but it apparently served to divert the judge's attention from the proper impact of the indictment on the question of the agent's authority to the defendant's fear that the indictment for the bank robbery might be treated as proof of the subsequent crime for which the defendant was on trial. In order to guard against that danger the judge observed in the hearing of the jury that the indictment "is to be considered solely by the jury on the question of the defendant's motive as such motive may bear on his intent. The court will, at an appropriate time, instruct the jury in more detailed terms the purpose for which this evidence has been received and the limited consideration they may give it."
It is, of course, obvious that the indictment could have no probative force even on the issue of motive unless it were shown that its existence became known to the defendant. As to this we may take judicial notice that it is frequent practice for federal indictments to be sequestered until the apprehension of those accused therein has been accomplished. And nowhere in the trial record is there evidence from which the jury might fairly infer that the defendant actually knew that there was a formal indictment outstanding accusing him by name. As we have already observed the testimony as to the bank robbery was pertinent to show the defendant's knowledge that he was wanted. But the existence of an indictment, standing alone, could not prove such knowledge.
However, never once in or out of the hearing of the jury did the judge suggest that the prior indictment, without more, was proof of knowledge. When he denied the motion for a mistrial, for aught he could then tell proof of the knowledge necessary to link the indictment with the defendant's motive might yet be offered. Certainly at the time the indictment was admitted there was no occasion for any further instruction to the jury as to its proper effect.
And the subsequent course of the trial completely obviated all need for the judge, as he promised, "at an appropriate time (to) instruct further on the subject matter." For in his summation counsel for the defense conceded that at the time of the shooting the defendant knew he was wanted. The District Attorney in his summation never once referred to the indictment and, as noted above, based his argument on the issue of motive on the testimony as to the bank robbery which, as we have held, was properly received on that issue. Thus, with no reference to the indictment in the summations, the judge wisely concluded that there was no need for him to refer to it or to explain to the jury that, standing alone, it had no tendency to prove bad motive on the part of the defendant especially when in the summation it was conceded that the defendant had knowledge that he was wanted.
We hold that there was no error in the admission of the indictment.
The defendant further contends that the evidence was insufficient to support a verdict of first degree murder as defined by 18 U.S.C.A. §§ 1114 and 1111. We have, therefore, scrutinized the record for the evidence bearing on each essential element of the government's case.
Under 18 U.S.C.A. § 3052 the deceased, concededly an F.B.I. agent, had authority to "serve warrants." There was evidence that at the time a warrant for the defendant's arrest was outstanding and the warrant itself as well as the indictment on which it was predicated were in evidence. Moreover Section 3052 authorized arrests by F.B.I. agents "without warrant * * * for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed * * * such felony." There was ample evidence from which the jury could find that the deceased did indeed have reasonable grounds for such belief. We conclude that the authority of the deceased to make arrest of the defendant was fully established. There was abundant evidence that the deceased met his death in attempting the arrest and since his authority to arrest was established there was ample basis for a finding that his death occurred "while engaged in the performance of his official duties" which was an essential issue of the case under Section 1114.
On the trial, defense counsel conceded that the deceased died as a result of the gunshot wounds sustained in the hotel hall and in his summation further conceded that the only bullet extracted from the body of the deceased was fired from the defendant's gun (which was still in the defendant's hands after the shooting). There was undisputed evidence that two bullets passed through the body: defense counsel on summation conceded that it was "self-evident," and certainly it was amply proved, that bullets from the defendant's gun and bullet holes were found low in the wall in back of the place where, according to the government's testimony, the deceased had a few seconds before been seen in a crouching position and where his body was lying after the shooting. Defense counsel also conceded, and we agree, that the evidence compelled an inference that the defendant shot with intent to kill. That the defendant intentionally killed the deceased was thus amply established, and sufficiently proved.
Was there sufficient evidence that the homicide was without justification? On this issue of self-defense, the defendant relies principally on the undisputed fact that at the time the deceased was dressed in slacks, with no official badge showing, and on the testimony of agents and an attending hospital surgeon called as witnesses by the prosecution, to whom the defendant after his arrest gave various accounts of the incidents of the affair. There were thus before the jury the defendant's statements made out of court that as he was passing the deceased the deceased drew a gun and the defendant then "tangled" with him and shot him in the course of the ensuing struggle. In these statements - relayed to the court through the witnesses - there was no assertion that the deceased shot first or that the defendant put up no resistence. Nor was there direct testimony to that effect from any ...