Was It Error To Allow The Government To Impeach Mamie Brookins?
Through the testimony of Mamie Brookins, the sister of Alfred Jasper, the Government tried to prove that the defendant was in the company of Bernard Harris the evening before the robbery at her apartment. It became apparent soon after Mrs. Brookins took the stand that she would not so testify, although she had previously indicated that she would in a statement to two F.B.I. agents.
The defendant argues that under the law of Pennsylvania it is not permissible to plead surprise by showing a prior inconsistent oral statement not made in the presence of the party calling the witness or its counsel. Selden v. Metropolitan Life Insur. Co., 157 Pa.Super. 500, 43 A.2d 571 (1945). Assuming arguendo that a statement made to the F.B.I. is not a statement made to a party, we think that it is nonetheless within the broad discretion of the trial judge to permit cross-examination of a party's own witness because of surprise where it appears to the satisfaction of the court that the surprise is genuine. The rule in the federal courts is that assurances of an attorney are prima facie sufficient to permit the court to invoke its discretion and permit cross-examination, United States v. Graham, 102 F.2d 436 (C.A.2, 1939), and we are in no way limited to the state rule, assuming it obtains. See F.R.Crim.P., rule 26. Here, the court went further in assuring that there was indeed surprise by examining the statement taken from Mrs. Brookins by the two agents. It is noteworthy that the conclusion of the court that there was surprise was verified by the fact that Mrs. Brookins supplied the defendant with a defense of alibi while testifying on cross-examination by defendant's counsel. The defendant could not conceivably have been harmed by the ruling.
Was The Evidence Sufficient To Support A Conviction Of Aiding And Abetting The Commission Of A Bank Robbery During Which Life Was Put In Jeopardy With A Dangerous Weapon under 18 U.S.C. § 2113(d)?
We agree that the proper standard in evaluating whether life was put in jeopardy is an objective one. The question here, then, is whether, construing the evidence in the light most favorable to the Government, there was sufficient evidence from which the jury might find beyond a reasonable doubt that the guns used in the commission of the crime were, in fact, loaded.
First, it is clear that the guns were used in a manner calculated to put the bank employes in fear of great bodily harm. Their use was intended to carry the message that they were loaded. Similar evidence was sufficient to sustain a conviction under 18 U.S.C. § 2113(d) in Lewis v. United States, 365 F.2d 672 (C.A. 10, 1966), cert. denied, 386 U.S. 945, 87 S. Ct. 978, 17 L. Ed. 2d 875 (1967). But in addition to this evidence the jury here had much more to go on. Herbert Lee Hamilton, a fellow inmate of defendant in the Philadelphia Prison Detention Center, testified that on April 25, 1968, the defendant told him that he was a co-adventurer in the robbery. Hamilton testified further: "He said he had directed one of them inside the bank to take no precaution, to shoot if they had to. I believe he stated he directed Harris to do that." The jury could reasonably have inferred that the guns were loaded from the fact that Carter directed one of the robbers to shoot if necessary. We conclude that the evidence was sufficient to support a charge of aiding and abetting the crime proscribed in 18 U.S.C. § 2113(d).
And now, this 11th day of February 1969, upon consideration of the briefs and arguments, it is ordered that the motions of the defendant Wilbur Carter for judgment of acquittal, or, in the alternative, for a new trial be and they hereby are denied.
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