page 48, 122 A. 161; Com. v. Smith, 1953, 374 Pa. 220, at page 233, 97 A.2d 25; Com. v. Bryant, 1951, 367 Pa. 135, at page 150, 79 A.2d 193, and see Lyons v. State of Oklahoma, supra, 322 U.S. at page 602, 64 S. Ct. at page 1212.
'When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession if, upon the whole evidence, they are satisfied it is not the voluntary act of the defendant.' Wilson v. United States, supra, 162 U.S. at page 624, 16 S. Ct. at page 900; Com. v. Spardute, supra, 278 Pa. at page 48, 122 A. 161; Com. v. Jones, 1941, 341 Pa. 541, at page 548, 19 A.2d 389; Lyons v. State of Oklahoma, supra, 322 U.S. at page 603, 64 S. Ct. at page 1212; 2 Wharton's Criminal Evidence, § 351, p. 41, and see 3 Wigmore, 3d Ed., §§ 832, 835, 853, 861.
As to the statement itself as evidence of defendant's state of mind, see Lyons v. State of Oklahoma, supra, 322 U.S. at page 599, 64 S. Ct. at page 1211.
We denied defendant's request to delete from her husband's statement, 'However, my wife objected and I sat there awaiting developments. My wife influenced me in waiting stating we could not leave White * * *', because it tended to show his state of mind when the bank alarm sounded, his knowledge at the time, and intended flight. Other parts of the statement of the same purport would supply the deficiency created by the deletion. Defendant's statement and testimony were substantially to the same effect. The jury was instructed that the testimony bound only the husband. See Blumenthal v. United States, 332 U.S. 539, at pages 552-553, 559, 68 S. Ct. 248, 92 L. Ed. 154; Skiskowski v. United States, 1946, 81 U.S.App.D.C. 274, 158 F.2d 177, at page 180.
In a pre-trial memorandum opinion we denied defendant's request to examine all statements made by herself and the other two defendants; in accord see United States v. Kiamie, D.C.S.D.N.Y., 18 F.R.D. 421. All such statements were made available for proper use by defense counsel at the trial itself.
A request to interrupt the direct testimony of Philip Anthony so that defense counsel could call defendant's father and sister to testify that defendants visited defendant's father's home near Poughkeepsie, New York, at unusually late hours during the summer, to show there was nothing unusual about the time of departure in the present instance, was denied. If true it had little relevancy to the subject at hand. However, to accommodate counsel and the witnesses the government stipulated that if called they would so testify. There was no valid reason for not calling them in the proper order. See United States v. Stoehr, supra, 100 F.Supp., at pages 152, 154, 159, 161.
A ballpoint pen produced in court had the same color ink as was used to write 'This is a holdup' on the deposit slip. Philip Anthony did not remember exactly the kind of pen he had but said the pen in court looked familiar. On the government's side the officer in court could not identify it and it was not pressed as an exhibit. They did not later press the offer. See United States v. Bazzell, supra, 187 F.2d at page 886. In our charge we inadvertently referred to the pen with other exhibits but immediately set it to one side. United States v. Rooth, 2 Cir., 1947, 159 F.2d 659, at page 660; Nash v. United States, 2 Cir., 1932, 54 F.2d 1006.
The leather thongs were apparently freshly cut. On cross examination defendant was asked whether they were to be used to tie up somebody. The exhibit and their possible use was called to the jurors' attention. 'It is a primary duty of the trial judge -- a duty that must never be ignored -- in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide.' Sears v. Birbeck, 321 Pa. 375, at page 383, 184 A. 6, at page 10; United States v. Stoehr, supra, Id.; Simmons v. United States, 1891, 142 U.S. 148, at page 155, 12 S. Ct. 171, 35 L. Ed. 968; United States v. Philadelphia & R.R. Co., 1887, 123 U.S. 113, at page 114, 8 S. Ct. 77, 31 L. Ed. 138; Allis v. United States, 1894, 155 U.S. 117, at page 122, 15 S. Ct. 36, 39 L. Ed. 91.
Rule 30, F.R.Cr.P. requires that counsel be afforded opportunity to object to the charge of the court out of the hearing of the jury. See Lovely v. United States, 4 Cir., 1948, 169 F.2d 386, at page 391, 'Ordinarily, failure to observe the requirements of this rule will be held sufficient ground for granting a new trial, unless it affirmatively appears that no prejudice resulted therefrom; for counsel should not be required in the presence of the jury to place themselves in the attitude of apparent antagonism to the trial judge which is involved in excepting to the charge.' The rule was not violated here. Cf. Blumenthal v. United States, supra, 332 U.S. at page 551, 68 S. Ct. at page 253.
We granted defense counsel's request to strike off their rest to enable them to show that White had pleaded guilty to all counts with which he was charged. Having opened the issue defense counsel wanted it closed without affording government's counsel an opportunity to be heard. We asked the government counsel for their position and they agreed requesting that it be made abundantly clear that such plea in no manner affected the defendant on trail; that defendant Anthony's guilt must be proved independently by the evidence. The court agreed and later so charged. See Babb v. United States, 5 Cir., 1955, 218 F.2d 538, at page 541; Barone v. United States, 8 Cir., 1953, 205 F.2d 909, at page 914. Defendant's points were thereafter offered, discussed and ruled upon out of the hearing of the jury.
As to the charge on circumstantial evidence,
see Holland v. United States, 1954, 348 U.S. 121, at pages 139, 140, 75 S. Ct. 127, 99 L. Ed. 150; United States v. Dolasco, 3 Cir., 1950, 184 F.2d 746, 748; United States v. Austin-Bagley Corp., 2 Cir., 1929, 31 F.2d 229, 234; United States v. Valenti, 2 Cir., 1943, 134 F.2d 362, 364; McCoy v. United States, 9 Cir., 1948, 169 F.2d 776, at page 784, and see Wigmore, op.cit. supra, 26; Com. v. Marino, 1940, 142 Pa. Super. 327, at page 333, 16 A.2d 314; Com. v. Meyers, 1943, 154 Pa.Super. 8, 34 A.2d 916; Com. v. Libonati, 1943, 346 Pa. 504, at page 508, 31 A.2d 95; Com. v. Holt, 350 Pa. 375, at page 387, and see page 397, 39 A.2d 372; Com. v. Bausewine, 354 Pa. 35, at page 41, 46 A.2d 491. Here some of the evidence was direct. See United States v. Stoehr, supra, 100 F.Supp. at page 163, and McCoy v. United States, supra, Id. The question left open in United States v. Dolasco, supra, was decided in Holland v. United States supra. We charged the jury that a conviction may be had on circumstantial evidence only when the facts and circumstances proved clearly exclude every reasonable hypothesis but that of guilt. In view of developments in this branch of the law, defendant was given a more favorable charge in this respect than she was entitled to. See United States v. Quick, 3 Cir., 1942, 128 F.2d 832.
As to the distinction between aiding and abetting and accessory after the fact and the possibility of defendant being found guilty of both charges, see and cf. 18 U.S.C.A. 2, and Id. 3. One who aids and abets another to commit a crime is guilty as a principal. Bozza v. United States, 1947, 330 U.S. 160, at page 164, 67 S. Ct. 645, 91 L. Ed. 818; United States v. Caplan, supra, 123 F.Supp. at page 865. 'In order to aid and abet another to commit a crime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.' L. Hand J., in United States v. Peoni, 2 Cir., 100 F.2d 401, 402.' Nye & Nissen v. United States, supra, 336 U.S. at page 619, 69 S. Ct. at page 769. 'Aiding and abetting * * * states a rule of criminal responsibility for acts which one assists another in performing.' Id. 336 U.S. at page 620, 69 S. Ct. at page 770. 'Aiding and abetting means to assist the perpetrator of the crime.' United States v. Williams, 341 U.S. 58, at page 64, 71 S. Ct. 595, at page 599, 95 L. Ed. 747; Pereira v. United States, supra, 347 U.S. at page 11, 74 S. Ct. at page 364, '* * * consciously shares in a criminal act * * *.' The least degree of concert or collusion is sufficient. Com. v. Lowry, 1953, 374 Pa. 594, at page 600, 98 A.2d 733. The charge lies only when the crime -- here an attempt -- has actually been committed. Krulewitch v. United States, supra, 336 U.S. at page 450, 69 S. Ct. 716. In our charge we read § 2113(a)(d), Count 5, charging defendant with aiding and abetting White in attempted armed robbery of a national bank, and outlined the evidence which made it abundantly clear that the defendant associated herself with the venture as something she wished to bring about, and sought by her action to make it succeed. We instructed the jury that before they could find defendant guilty they must find the requisite act and intent
to help the cause along, and that the defendant acted in a material way to aid White to attempt to rob the bank. Many times elaboration makes a matter less clear. See Perovich v. United States, 1907, 205 U.S. 86, at page 92, 27 S. Ct. 456, 51 L. Ed. 722; Spalitto v. United States, 8 Cir., 1930, 39 F.2d 782, at page 788; Com. v. Habecker, 1934, 113 Pa.Super. 335, at pages 340, 341, 173 A. 831.
Congress in § 2 for all practical purposes removed the distinction between accessory before the fact and principal; see Colosacco v. United States, 10 Cir., 1952, 196 F.2d 165, at page 167; United States v. Carengella, 7 Cir., 1952, 198 F.2d 3, at pages 6-7; Von Patzoll v. United States, 1947, 10 Cir., 163 F.2d 216, at pages 218, 219, and cf. Madigan v. United States, 8 Cir., 1927, 23 F.2d 180; United States v. McCarthy, 2 Cir., 1948, 170 F.2d 267, 268. See however Aaronson v. United States, 4 Cir., 1949, 175 F.2d 41, as to the application of the rule, a case particularly apposite to the present situation.
Section 3, accessory after the fact, however remained intact. See Morei v. United States, 6 Cir., 1942, 127 F.2d 827, at page 830. Section 2 covers acts in the commission of an offense. Section 3 comes into play only after the principal offense has been committed by another, Skelly v. United States, 10 Cir., 1935, 76 F.2d 483, at pages 487, 488; Neal v. United States, 8 Cir., 1939, 102 F.2d 643, at pages 645, 646, hereby concealing him, furnishing him with means of flight, and frustrating the police in their efforts to apprehend him.
In our charge we read § 3 verbatim, Count 7, charging the offense and outlined the evidence as to defendant's conduct in bringing about the prohibited result. In our judgment we made the distinction between the charge of aiding and abetting and that of being an accessory after the fact sufficiently clear for the jury to come to an intelligent decision.
May one who aids and abets in the commission of attempted robbery be found guilty as accessory after the fact? Following the same line of reasoning indulged in, supra, in distinguishing between conspiracy and substantive offenses and considering the attitude toward merger in this country, see Pinkerton v. United States, supra, 328 U.S. at page 643, 66 S. Ct. at page 1181, one would logically come to the conclusion that § 2 and 3 define separate and distinct offenses. Section 3 requires that an offense has been committed and that defendant assist the offender. 22 C.J.S., Criminal Law, § 95, citing only United States v. Hartwell, C.C.Mass.1869, 26 F. Cas. page 196, No. 15,318; suggests that absence of the party at the time the crime was actually committed is necessarily implied in the definition, and see Blackstone's Commentaries cited in Skelly v. United States, supra, 76 F.2d at page 487, "An accessory is he who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the fact committed." (Italics supplied.) Judge Evans, dissenting in United States v. Johnson, 7 Cir., 1941, 123 F.2d 111, at page 135, expressed some doubt speaking of double punishment and suggesting that the two offenses merged, but see Id., 1943, 319 U.S. 503, at page 518, 63 S. Ct. 1233, 87 L. Ed. 1546. Perkins, supra, at 605, suggests that the accessory may not himself be guilty of the felony as a principal, citing Crosby v. State, 1937, 179 Miss. 149, 175 So. 180, at page 181; People v. Chadwick, 7 Utah 134, 25 P. 737, and see Howard v. State, 1913, 9 Okl.Cr. 337, 131 P. 1100, but that one who is an accessory before the fact may become an accessory to the same offense after the fact, Perkins, Id., p. 606, citing Rex v. Blackson, 1837, 8 C. and P. 43, 173 Eng. Rep.R. 391; Springer v. State, 1897, 102 Ga. 447, 30 S.E. 971, and see Com. v. Darnell, 1955, 179 Pa.Super. 461, 116 A.2d 310. Neither counsel met the problem at the trial nor adequately in their briefs or arguments.
Obviously the defendant was not actually present at the crime. It was in fact committed by White. Congress in its wisdom has seen fit to make hindering of defendant's apprehension a substantive offense. Morei v. United States, supra, 127 F.2d 827; Neal v. United States, supra, 102 F.2d 643. It does not partake of the nature of the principal offense nor is it any degree of it. State v. McAlister, 1934, 139 Kan. 672, 33 P.2d 314, 317; State v. Bowman, 1937, 92 Utah 540, 70 P.2d 458, at page 461, 111 A.L.R. 1393. Certainly there are elements present in violating § 3 not necessary to proof of guilt of violating § 2. While § 2 removed distinctions between principal in the second degree and accessory before the fact, '* * * accessory after the fact is * * * an offense of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other * * *' Blackstone, supra, p. 40.
Applying the teaching of Aaronson v. United States, supra, 175 F.2d 41, we hold that the offenses are separate and distinct.
Finally, a problem not raised in the motion or supplemental motion for new trial but in defendant's brief. There was competent, credible evidence from which the jury could find that defendant worked steadily at complicated, difficult work while her husband, because of ill health, was not working; that money earned by defendant was used to finance White's ventures; that defendant insisted on being a part of the group in the planned robbery; insisted upon her husband waiting for White; was indignant when questioned and made misleading statements to the police; looked after her husband's welfare asking that he be seated, and was last to make a statement. Time after time she had opportunity to withdraw safely from the venture and to summon the police to her aid. As to the requisite measure of compulsion, coercion or necessity, see Shannon v. United States, 10 Cir., 1935, 76 F.2d 490, at page 493. "Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury." Cited with approval in R. I. Recreation Center, Inc., v. Aetna Casualty and Surety Co., 1 Cir., 1949, 177 F.2d 603, at page 605, 12 A.L.R.2d 230, and see 22 C.J.S., Criminal Law, § 44, 15 Am.Jur. Criminal Law, § 318.
Is the rule otherwise where a married woman and her husband are involved? See IX Wigmore on Evidence, 3d Ed., § 2514, p. 425, '* * * the coercion of the husband, which in Blackstone's correct phrase may be 'an excuse for criminal misconduct' of the wife, may at common law be presumed from the husband's presence; this then creates for the prosecution a duty of adducing evidence of the wife's willing participation, the risk of non-persuasion remaining throughout upon the prosecution. But this presumption since the rise of feminism is on its way to disappearance.'
See Id., IX Wigmore, p. 425, footnote 7, 'The presumption is being abandoned by the federal courts; Dawson v. United States, 9 (Cir.), 1926, 10 F.2d 106 * * * Conyer v. United States, 6 (Cir.), 1936, 80 F.id 292 (* * * presumption repudiated).' To which we add United States v. DeQuilfeldt, C.C.W.D.Tenn.1881, 5 F. 276, at page 278, the ' * * * defence * * * is not a favored one, and, at least in modern times, has almost lost all solid foundation for its existence. * * *' United States v. Hinson, D.C.S.D.Fla. 1925, 3 F.2d 200; Haning v. United States, 8 Cir., 1932, 59 F.2d 942, at page 943; United States v. Swierzbenski, D.C.W.D.N.Y.1927, 18 F.2d 685.
See discussion and authorities cited in State v. Renslow, 1930, 211 Iowa 642, 230 N.W. 316, 71 A.L.R. 1111; Morton v. State of Tenn., 1919, 141 Tenn. 357, 209 S.W. 644, 4 A.L.R. 264.
Even if one were to indulge the presumption, it is a weak one and may be rebutted by slight circumstances. 20 Am.Jur. Evidence, § 215, p. 214; 27 Am.Jur. Husband and Wife, § 642, '* * * proof that her conduct was inconsistent with any coercion on his part suffices for the purpose,' and see 41 C.J.S., Husband and Wife, § 222, pp. 717, 718. 'Presumptions are only intended to supply the place of facts and not to contradict them, and cannot be relied upon where the facts actually appear.' 2 Henry Pa. Evidence, supra, § 651, p. 77, and see Watkins v. Prudential Ins. Co., 1934, 315 Pa. 497, at page 503, 173 A. 644, 95 A.L.R. 869. Here there was an abundance of evidence to negative any presumption if any in fact existed. Cf. Burgner v. United States, 4 Cir., 1921, 272 F. 116; United States v. Terry, D.C.N.D.Cal.1890, 42 F. 317, at page 319; Kelly v. United States, 10 Cir., 1935, 76 F.2d 847; Johnson v. United States, supra, 157 F.2d 209; Thompson v. United States, supra, 227 F.2d 671; Com. v. Hand, 1915, 59 Pa. Super. 286.
We charged the jury that marriage does not affect the capacity of the spouses to commit crime. 27 Am.Jur. Husband and Wife, § 638, 41 C.J.S., Husband and Wife, § 221. If in committing it they act of their own free will and not under coercion of the other they are held to the same responsibility for criminal acts as other persons. The rule is otherwise when a husband or wife or in fact any other person acts under the compulsion or coercion of another. The act and intent to institute a crime must be voluntary. They must be the act and intent of a free agent. That at one time the law recognized a husband and wife as one for all purposes; the wife couldn't testify, vote, serve as a juror, or own property, but she now stands on her own before the law. Sometimes wives are dominated by the husband and vice versa, but before the jury could find the defendant guilty they must first find she acted of her own free will. Incidentally, there were nine women on the jury, one of whom acted as foreman. As to the advancement of the law to meet current needs, see F.R.C.P. Rule 26; Nardone v. United States, 308 U.S. 338, 342, 60 S. Ct. 266, 84 L. Ed. 307; Patton v. United States, 1930, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854, and see an excellent review of the cases in United States v. Lutwak, 7 Cir., 1952, 195 F.2d 748, at page 756.
In view of the foregoing, all of defendant's motions will be denied.