TUTTLE, Circuit Judge.
Appellant was convicted on five counts relating to the robbery of a bank in Birmingham, and five sentences were imposed so as to run consecutively for a total of twenty years and two days. Count 1 charged a violation of 18 U.S. C.A. § 2113(a), in material part alleging that Heflin feloniously and by force and violence took from the "person and presence" of one Lawrence Brice, $53,172.73 belonging to and in the possession of a National Bank member of the Federal Reserve System. Count 2 charged violation of 18 U.S.C.A. § 2113(b), taking and carrying away such money with intent to steal. Count 3 charged violation of 18 U.S.C.A. § 2113(d), taking such money from the "person and presence" of Brice and in so doing assaulting named persons with a revolver or pistol. Count 4 charged violation of 18 U.S.C.A. § 2113(c), receiving, concealing, storing, and disposing of said money, knowing it to have been taken from a member bank of the Federal Reserve System with intent to steal. Count 5 charged conspiracy to violate the above sections, and the overt act of taking the money.
Appellant specifies 42 errors, many of which are repetitious and some of which are so vague that we might well disregard them. For the sake of convenience we have condensed the 42 specifications into 10 points:
(2) The court should have granted the motion for acquittal, particularly as to counts 1 and 3, because of the variance in the proof, which showed that the money was not taken from both the "person and presence" of Brice.
(3) The court erred in refusing to allow appellant to take the deposition of one Samuel Jay Hornbeck, and to allow a continuance for obtaining his testimony; and further in refusing a continuance on account of the absence of appellant's alibi witnesses Ray Boree and W. R. Boone.
(4) The court erred in admitting testimony of Mrs. Patsy Ruth Hornbeck, and then excluding it and ordering the jury not to consider it instead of granting a mistrial.
(5) The sentences imposed under counts 1, 2, 3 and 4 are invalid.
(6) The court erred in admitting or excluding testimony of appellant and witnesses Hicks, Moore, Prater, Goldman and Mrs. Loretta Heflin.
(7) The court erred in refusing to issue a subpoena to Albert Sidney Denton.
(8) The court erred in its charge and in refusing certain requested instructions, particularly in charging in substance that it is generally known that bank robbers dress in a manner to confuse their victims.
(9) The court erred in overruling challenges for cause of two jurors, necessitating the use of two of appellant's peremptory challenges.
(10) The court erred in refusing the motion for a new trial.
(1) The indictment seems to us quite exemplary. Each count follows closely the language of the corresponding statute, and alleges each element of the offense charged. As for appellant's objection that the words "person" and "presence" should have been jointed by the disjunctive "or" instead of the conjunctive "and," quite the contrary is true.
Consequently we see no merit in this first contention of appellant.
(2) Nor was it error to refuse to direct an acquittal. In answer to the particular contention that there was a variance as to counts 1 and 3 in that there was no proof that the money was taken from both the person and presence of Brice, the Government says that the defect was only formal and not prejudicial, and, besides, the taking was at least constructively from Brice's person. We think, however, that appellant's argument fails for the more vital reason that this was not a defect in the proof at all. The Government need never prove both a taking from the person and a taking from the presence. This is a corollary to the rule of pleading that such matters are to be alleged in the conjunctive, although existence of either alternative would constitute the offense as the statute defines it.
As for the sufficiency of the evidence in general to support the jury's verdict, we are satisfied that there was no error. The Government had a notably strong case. Cletus Goldman, who was indicted in the same indictment for the same offenses, testified for the Government and gave a clear account of the whole affair. He said there were four participants in the robbery, himself, his brother Myron Goldman, Samuel Jay Hornbeck, and the appellant. These four met on various days prior to January 23, 1953, in Birmingham, where they were staying in various motels and a rented apartment. The witness said that they had come to Birmingham intending to commit a robbery, and had stolen several cars to use in their operations, but he did not know of the plan to rob the West End Branch Bank until January 22. On that date they drove to the vicinity of the bank, discussed the plan of the robbery and their several parts in it, went over their getaway route several times, and parked two stolen cars along the route. The next morning, January 23, the robbery was executed according to plan, the getaway was made, and the loot divided. On the 24th, Cletus Goldman and Heflin drove to Gulf Shores, Alabama, where they picked up Heflin's wife, and on the 25th the three drove to Savannah. The Government called ten bank employees and customers present at the robbery to testify. As might be expected, their testimony was conflicting in many details, as the number and identity of the participants. But on the whole their testimony accorded with Cletus Goldman's. Three witnesses identified Heflin fairly positively as a participant, and a fourth witness thought he resembled one of the robbers. Other Government witnesses corroborated many other details of Cletus Goldman's story, as the theft of an automobile, the switching of license plates, and sojourns at various motels. Appellant's appointed counsel conducted a vigorous defense, attacked Cletus Goldman's credibility, and cross-examined the Government witnesses at length; but although his brief makes much of the inconsistencies in testimony and the doubts as to indentification so educed, we are satisfied that the jury had ample evidence on which to base its verdict. They could well believe Cletus Goldman's entire story, corroborated as it was in all material points.
Evidently the jury did not believe Heflin's own tale that he had been in Birmingham with Hornbeck and the Goldman brothers prior to midnight, January 22, but then drove to Jacksonville, where all that he seems to have recalled doing was to have conversed with three men at a service station the morning of the 23rd. There was no evident purpose for the trip, and Heflin's testimony did not disclose whom else he may have seen, what else he did, or where he stayed in Jacksonville that night. He did say that he left for Gulf Shores on the 24th, picked up his wife, and drove to Savannah on the 25th.
We apprehend that the basic issue taken by the defense concerning the sufficiency of the proof is the identification of Heflin as one of the robbers. Considering the nature of the crime, where none of the victims knew the robbers, the victims must have been badly frightened, and the robbery was completed in a few minutes, the evidence of Heflin's identity was unusually strong. Cletus Goldman's identification was of course positive; certainly he made no mistake. The only question is rather whether he was lying, and certainly the jury could believe Heflin lied, and not Goldman. For the identification by other witnesses was naturally not as positive as Goldman's, but it was certain enough to justify the jury in believing Goldman on the question of identity. Heflin's own testimony established that he had several times been convicted; was a part-time professional gambler; had long associated
(3) The refusal to allow appellant to take Hornbeck's deposition was within the discretion of the trial court under Rule 15, Federal Rules of Criminal Procedure, 18 U.S.C.A. Hornbeck was at the time in a Florida penitentiary under sentence of death for murder. As far as this record shows, appellant is correct in saying that Hornbeck was a competent witness; but under Rule 15, the criterion by which the trial court orders the taking of a deposition is whether it is necessary in order to prevent a failure of justice. This discretion vested in the trial court is broad, and Rule 15 contemplates the taking of depositions in criminal cases only in exceptional instances, as the Notes of the Advisory Committee on Rules point out. Appellant's motion was filed at 4:00 p. m. on a Friday, only five days prior to the trial.
For like reason we think the court did not err in refusing a continuance. Appellant's motion papers did not contain a showing that Hornbeck's deposition could probably be obtained within a reasonable time, which is necessary to be shown. 12 Am.Jur., "Continuances," §§ 27, 35. This alone sufficed to justify the denial of a continuance, but in the abundance of caution the prosecution after such denial judicially admitted that Hornbeck would if present testify exactly as appellant claimed. This is generally held to defeat a motion for continuance by defendant in a criminal action. 12 Am.Jur., "Continuances," § 46; 3 Wigmore, Evidence (3d Ed.) § 888; see Nelson v. Devney, 7 Cir., 102 F.2d 487. As for the absence of witnesses Boree and Boone, subpoenas issued for them had been sent to the United States Marshal at Jacksonville for service, and the Marshal advised that he was unable to locate them. In the absence of a showing that appellant could probably locate and serve these witnesses within a reasonable time, it was within the trial court's discretion to refuse a continuance. Davenport v. United States, 5 Cir., 197 F.2d 157; Adams v. United States, 5 Cir., 128 F.2d 820; Woods v. United States, 8 Cir., 26 F.2d 63. See also Annotation, 41 A.L.R. 1530. And certainly there was no strong probability that the absence of these witnesses affected the result of the trial. See Lockhart v. United States, 6 Cir., 264 F. 14, 16, certiorari denied 254 U.S. 645, 41 S.Ct. 14, 65 L.Ed. 455.
(4) The admission of certain testimony of Mrs. Patsy Ruth Hornbeck
Certainly this was not admissible evidence over the objections raised. It was not admissible as a declaration of a co-conspirator in pursuance of a common purpose, as the court evidently first thought. Hornbeck's statements to his wife had nothing to do with accomplishing the purpose of the conspiracy; all the evidence showed that purpose had been accomplished and that the conspiracy had ended. Nor was this testimony admissible as impeachment. See Eason v. State, 30 Ala.App. 224, 4 So.2d 190, 191, certiorari denied 241 Ala. 570, 4 So.2d 192:
The rule quoted here is generally followed and seems to us sound. The federal practice as to continuances is not set out in the statutes or Federal Rules, but it does not differ substantially from state court practice except as provided by local rules. 11 Cyc.Fed.Proc. (3d Ed.) §§ 45.01-.02. We agree with appellant, then, that this testimony of Mrs. Hornbeck was not admissible under any theory.
Having carefully examined the testimony objected to, we are satisfied that it was not so likely to impress and prejudice the jury that the court's subsequent instructions to disregard it were insufficient to cure the error. We therefore apply the general rule and hold that the trial court did not err in refusing a mistrial. 1 Wigmore, Evidence (3d Ed.) § 19.
(5) The Government's brief admits that there was error in the sentence imposed. Counts 1, 2 and 3 did not charge separate offenses, because 18 U.S. C.A. § 2113(a), (b), and (d) have been construed not as creating separate offenses, but only as creating different maximum punishments for a single offense depending on the existence of aggravating circumstances. It follows that only a single sentence should have been imposed under counts 1, 2 and 3, not exceeding a $10,000 fine and 25 years' imprisonment. Wells v. United States, 5 Cir., 124 F.2d 334; Durrett v. United States, 5 Cir., 107 F.2d 438. However, receiving stolen money and conspiracy are offenses separate from bank robbery, and consist of distinctly different elements. The convictions under counts 4 and 5 may therefore stand.
Because of the error in treating counts 1, 2 and 3 as separate crimes, the convictions of counts 1 and 2 must be reversed. There being no other error, the convictions of counts 3, 4 and 5 are affirmed, and the case is remanded for vacation of the erroneous sentence and the imposition of sentence in accordance with the principles herein expressed.
"* * * there has been testimony with respect to clothes here that certain individuals wore. That goes to the issue of identification.
"Of course, as you gentlemen know people that are bent on the commission of crime try to cover up sometimes, and you will just have to use your own judgment in passing upon the weight of the testimony in those respects."