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UNITED STATES v. BARBATI

April 26, 1968

UNITED STATES of America, Plaintiff,
v.
John BARBATI, Defendant



The opinion of the court was delivered by: WEINSTEIN

OPINION AND ORDER

 WEINSTEIN, District Judge.

 Having been convicted of passing a Ten Dollar counterfeit bill (18 U.S.C. ยง 472), defendant moves for a new trial on the ground that the verdict rested upon inadmissible hearsay evidence. See Fed.R.Crim.Proc. 33.

 A barmaid and a policeman were the chief witnesses for the prosecution. Two counterfeit Ten Dollar bills had been given to the barmaid in payment for drinks by two men sitting together at the bar. She showed the bills to the manager who hailed a passing police car. Within a few minutes of the time the bills were passed, the policeman had arrested the defendant and his companion in the bar.

 At the trial the notes were identified by the policeman as those the barmaid had turned over to him. She also identified the notes, relying upon the signature she had affixed at the time of the arrest.

 While the barmaid testified that two men had given her the bills and that she had pointed out the men who gave them to her, she could not, at the time of the trial, recognize the defendant or his companion. Testimony by the policeman, however, established that the defendant was the one pointed out to him as soon as he was called into the bar and that, following identification and arrest, the defendant was taken to the stationhouse where he was fingerprinted and booked.

 The critical testimony of the barmaid was as follows:

 
A * * * they [the police] came and they asked me where I got the money, I showed them.
 
Q Did you point out the two men?
 
A Yes, I did.
 
Q What if anything happened after that?
 
A Well, they searched the men.
 
Q Did they search the two men that you ...

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