PRETTYMAN, Circuit Judge.
Appellant Cooper was indicted, tried and convicted jointly with one Bullard for robbery. He was sentenced to five to fifteen years' imprisonment.
The evidence was that a Mrs. Gordon was robbed of cash, rings and watches in her home one day at about noon. She saw two of the robbers. Her husband arrived home during the incident, and when the robbers fled in a black car Mr. and Mrs. Gordon pursued, plainly seeing one robber and identifying the tag number of the car. In the meantime a mail carrier had seen four men run from the house, passing within forty feet of him. One robber, positively identified by both Mr. and Mrs. Gordon, was Bullard. The car in which the robbers fled was registered in Bullard's name, but it was agreed by all witnesses, including appellant Cooper, that Cooper was actually purchasing the car. Both Cooper and Bullard drove it upon occasion. It was shown upon the trial that Cooper went to a cousin and, telling her that he was in trouble, asked her to tell all inquirers that she was with him in Warsaw, North Carolina, on the day of the robbery. This cousin was in fact not in Warsaw that day. It was also shown that the local police wired the North Carolina police and in response were advised by wire that the last time Cooper had been in Warsaw was around Christmas. A fingerprint expert testified that a print, found on the steering wheel of the black car and identified as Cooper's, could, if it were undisturbed, have been there for an indefinitely long period. Cooper testified that he had left his car at a place in Maryland, having been unable to start it; that he had been in Warsaw, North
The foregoing reflects the sum total of the evidence against Cooper. Nobody identified him as one of the robbers. Nobody placed him at the scene of the robbery. The fingerprint was natural, as he frequently drove the car and was in fact paying for it. Much is made of his request to his cousin about being in Warsaw, but, in the absence of any probative — indeed any competent — evidence that he was not in Warsaw, his plea to her is as explainable by terror at his plight as by guilt. Had this evidence been coupled with proof that he was not in Warsaw that day, his request to his cousin could be used to show his consciousness of guilt, but standing alone it is explained by terrorized innocence as well as by a sense of guilt. After all, innocent people caught in a web of circumstances frequently become terror-stricken.
Counsel for Cooper made a motion for judgment of acquittal at the conclusion of the case for the Government and again at the conclusion of the entire case. We think the court should have granted the motion.
The applicable rule is laid down in Curley v. United States.
It is clear to us that upon the evidence in the case at bar a reasonable mind must necessarily have had a reasonable doubt as to Cooper's guilt. The total absence of any semblance of direct proof against Cooper, in the presence of so much direct proof as to the robbery and the robbers, must, we think, make a reasonable man have a reasonable
The judgment of conviction must be set aside. Since it is our view that the trial court should have directed that a judgment of acquittal be entered at the close of the case, we must direct that it do so now. Judgment will be so entered.