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UNITED STATES v. CARTER

February 11, 1969

UNITED STATES of America
v.
Wilbur CARTER



The opinion of the court was delivered by: LORD, III

 JOSEPH S. LORD, III, District Judge.

 On April 24, 1968, Bernard Harris, Melvin Lindsey and Alfred Jasper entered the Citizens Bank and Trust Company, 1849 South Street, Philadelphia, and took from its employes the sum of $54,221.00. The defendant in this case, Wilbur Carter, was indicted and convicted of three counts of aiding and abetting in the commission of that bank robbery. 18 U.S.C. ยงยง 2 and 2113(a), (b) and (d). He now moves for a new trial and directed verdict of acquittal. For the reasons stated below, the motions are denied.

 Was It Error To Allow The Government To Impeach Bernard Harris?

 During the course of the trial it became apparent that, to the surprise of the Government, Bernard Harris was a hostile witness. The Government relied on Harris to prove the corpus delicti of the charge of aiding and abetting. Without that proof the testimony of two witnesses that the defendant had admitted committing the crime would not have been admissible. The defendant argues that the corpus delicti was improperly established through the impeachment of Harris, since impeachment may not be used as substantive evidence, but only to discredit the prior testimony. Therefore, defendant argues his admissions were not properly in evidence and the verdict may not stand. Although we agree with defendant's general formulation of the law, we conclude that there was no prejudicial error here in allowing the Government to impeach Harris, and more importantly, that since the Government did not take advantage of the right so given, his testimony was proper.

 What happened at trial was this: Harris first testified that no car was used in the bank robbery. Several moments later he testified in response to a non-leading question and over no objection that the reason that they were able to proceed with their plans to rob the bank was that they now had a car, and further, that the defendant was the one in possession of the car. The Government, however, not content to let two versions of the story stand, apparently sought to have the witness disclaim his former testimony: "Didn't you just testify prior to this that you were not going to use the car?" A defense objection was properly sustained.

 The United States Attorney then approached the bench and upon representation that the witness had assured him the previous evening and that very morning and afternoon that he would testify that the defendant was the "wheel man", the court in its discretion permitted the Government to cross-examine because of surprise. A careful review of the record, however, reveals that there was, in fact, no impeachment at all of the witness. What followed was an examination generally permissible on direct; leading questions, of which there were few, were permissible because Harris was a hostile witness. When the Government sought to examine Harris on the basis of a prior statement he had made in his testimony, the following colloquy took place.

 
"Q. Now, did you state that you picked Jasper up the next morning?
 
"A. No. I didn't make that -- in that case I did not make that statement.
 
"Q. Didn't you say when I asked you --
 
"A. Oh, yes. When you say did I state, what are you speaking of? Did I make the statement here in the Courtroom or did I make the statement prior to this trial?
 
"Q. The statement here in the Courtroom that you picked up Jasper the next morning?
 
"THE COURT: What is the difference whether he said it or not?
 
Do you want to know whether he picked up Jasper the ...

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