Moore and Friendly, Circuit Judges, and Bryan,*fn* District Judge.
On the morning of August 9, 1966, a truckdriver pulled off the Connecticut turnpike into a rest area in Westport, Connecticut. As he left the cab of his truck, he was assaulted by three men who left him bound and gagged in the rest area. He freed himself after 20-25 minutes and called the police. Wallace Minniefield and John Davis, Jr., accomplices of the defendants, drove off in the truck, but were arrested when they stopped at a toll station in New Rochelle, New York. The other hijackers, defendants herein, were ultimately arrested in New Jersey.
A four-count indictment was handed down, charging the appellants and Minniefield and Davis with transporting a stolen motor vehicle in interstate commerce, knowing it to have been stolen (18 U.S.C. § 2312); interstate transportation of stolen goods having a value in excess of $5,000, knowing the same to have been stolen (18 U.S.C. § 2314); theft of goods exceeding $100 in interstate commerce (18 U.S.C. § 659) and conspiracy to transport a stolen motor vehicle in interstate commerce, knowing it to have been stolen (18 U.S.C. §§ 371, 2312). Minniefield and Davis pleaded guilty to the conspiracy charge and subsequently testified for the government.
At the trial the truckdriver identified Crutcher as one of his assailants and Minniefield and Davis corroborated his statement. Minniefield and Davis identified the other hijackers as Payne and Hazel and testified concerning the events leading up to the theft of the truck. The defense was alibi. The defendants appeal from a judgment of conviction entered upon a jury verdict finding them guilty on all counts.
Payne argues on appeal that his constitutional and statutory rights were violated when the jury was impanelled in his absence and that his trial and conviction are therefore defective. The trial was scheduled to begin Wednesday, February 15, 1967, in the Connecticut District Court in New Haven. On Monday morning February 13th, Payne was arrested by State authorities, to whom he gave a fictitious name, in Jersey City, New Jersey, on charges unrelated to this proceeding. On Wednesday morning the United States Attorney's Office in New Haven was notified of Payne's arrest but an attempt to have him brought to New Haven that day was not successful. The following colloquy took place Wednesday between the court and Mr. Ramsey, the attorney who represented the defendant at trial:
The Court: And Mr. Ramsey --
Mr. Ramsey: Yes, your Honor. I have been requested by Mr. Saunders to represent Mr. Payne, who is not present in court this morning.
The Court: I understand there is a problem there. Now ordinarily, Mr. Ramsey, I would entertain an application for a continuance. I think you know from prior experience in this court I will lean over backward to accommodate counsel, whether court-appointed or otherwise.
Mr. Ramsey: Yes, your Honor.
The Court: But under all the circumstances of this case, and particularly of Mr. Payne, I do feel it necessary to go forward with the impanelling of the jury.
And I might say, just to be quite candid about it and to perhaps set you at ease about the matter, that I will direct the impanelling of the jury despite Mr. Payne's absence. I would hope, however, that it might be possible for you to proceed even in Mr. Payne's absence, with the impanelling of the jury, and participate, exercise challenges, etc.
Mr. Ramsey: We have agreed, your Honor, on the impanelling of the jury without Mr. Payne. We don't think this would ...