BOREMAN, Circuit Judge.
At approximately 11:30 o'clock on the morning of March 8, 1962, The American Federal Savings & Loan Association, 1913 East Market Street, Greensboro, North Carolina, insured by The Federal Savings & Loan Insurance Corporation under certificate No. 4255, was robbed of $930.15 in cash at gun point. The manager was shot in the hand during the course of the robbery.
Edwin Wallace Pennix, appellant here (who will be referred to as Pennix or defendant), Alfred Neal and Floyd Douglas Patterson, after waiver of formal indictment, were charged in a two-count information with robbery of a federally insured savings and loan association. Neal and Patterson entered pleas of guilty and testified for the Government at the jury trial of Pennix on his plea of not guilty.
At the conclusion of all the evidence, the District Court dismissed Count Two of the information which charged a violation of 18 U.S.C. 2113(d) (putting the lives of certain persons in jeopardy by the use of a dangerous weapon during the robbery) and submitted for jury determination the guilt or innocence of Pennix on Count One, which charged a violation of 18 U.S.C. 2113(a) (robbery of the named federally insured institution by force and violence). Pennix was found guilty and was sentenced to a term in prison. We think the judgment of conviction should be set aside and Pennix awarded a new trial.
The testimony of the confessed armed robber, Alfred Neal, is substantially as follows. On the morning of the robbery, he went to the house where Pennix resided with his mother to borrow money from Pennix with which to pay an overdue electric light bill in the amount of $6.51. Neal took with him a revolver intending to pledge it as security for the repayment of the prospective loan. Pennix proposed to Neal that he, Neal, rob The American Federal Savings & Loan Association so that both would have money. It was suggested by Pennix that Neal obtain the assistance of another man to insure success. Pennix drove Neal to Patterson's house, had Neal bring Patterson out to the automobile and proposed to Patterson that he assist Neal in the robbery. Pennix instructed Neal and Patterson to purchase a loaf of bread and thus acquire a paper bag in which to carry the robbery loot. After making the purchase, they parked in the vicinity of the Savings & Loan Association office and Neal and Patterson left the car.
Neal's recital of events following the time when Neal and Pennix first contacted Patterson on the morning of the robbery was corroborated by Patterson.
At the trial, Pennix, who was represented by privately retained counsel, took the witness stand in his own behalf and denied all complicity in the robbery. He testified that while he was in bed, Neal came to his home early on the morning of March 8, roused him from sleep and requested a loan of $6.51 with which to pay an overdue light bill. These two had been acquainted for a month or more and Neal had called at the Pennix home on occasions in company with another acquaintance of Pennix. After lending Neal the money, Pennix drove him to downtown Greensboro to permit him to pay the light bill. Pennix was driving his two-tone 1958 Oldsmobile convertible which he had purchased on a deferred payment plan. He was partially paralyzed but could drive very well. During the drive, Neal stated that he was in desperate need of money and suggested that he and Pennix rob The American Federal Savings & Loan Association. Pennix refused and Neal requested that they pick up his friend, Patterson, which they did. After driving around for a period of time, during which Neal and Patterson discussed the robbery, Pennix let them out of the car at their request. He then proceeded past the Association office and onto the cloverleaf to the rear. As he was driving down the cloverleaf and applied the brakes, his motor stalled as it often did. After some difficulty, he was able to get the motor started and to drive away. He denied that Patterson rejoined him or that he had driven away at a speed greater than normal.
Witness Ellison, who was working in the vicinity, testified that he observed a car of the same general description as the Pennix car and occupied by one person, parked on the cloverleaf but he could identify neither the car nor the driver. He did say, however, that shortly before he heard of the robbery another unidentified person entered the car and the two drove away at a fast rate of speed. Witness Johnson, who was driving a small truck and who was personally acquainted with Pennix, testified that he saw the defendant sitting in his car on the cloverleaf near the rear of the Association office and that he waived to Pennix as he drove by. According to the defendant's own admission, he was in his own car on the cloverleaf at about the time of the robbery but he offered an explanation of his presence there. The primary points of conflict between his testimony and that of Ellison are the defendant's denials that another person entered his car and that the car was then driven away at unusually high speed.
The United States Attorney vigorously cross-examined Pennix, concluding that examination with the following questions and answers:
The government attorney commented, "That's all," and the court directed Pennix to "Come down." Defendant's counsel interposed no objection to this line of questioning.
After charging the jury at length as to the manner of determining the credibility of all witnesses, and after referring particularly to the defendant who testified in his own behalf, the District Court added:
There was no objection to this charge.
On this appeal Pennix contends that the District Court erred in permitting his cross-examination as to prior arrests, the error was so plain and so affected his right to a fair trial by an impartial jury that it should be noticed by this court, even in the absence of objection, and he should be awarded a new trial.
Generally a specific objection is required before a ruling of the trial court may be attacked as error.
To the same effect, see Krulewitch v. United States, 336 U.S. 440, 444, 69 S.Ct. 716, 93 L.Ed. 790 (1949).
In Echert v. United States, 188 F.2d 336 (8th Cir., 1951), the issue of the substantiality of the precise error asserted in the case at bar was squarely raised and decided. It was the contention of the Government that its cross-examination of the defendant in a Mann Act prosecution with regard to his prior arrests was no more than harmless error under Rule 52(a), Fed.R.Crim.P., which directs that any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Recognizing the heavy burden imposed upon a reviewing court by the decision of the Supreme Court in Kotteakos v. United States, supra, to grant a reversal only for those errors which are not insubstantial, the Court of Appeals for the Eighth Circuit (188 F.2d at 342), quoting from Sang Soon Sur v. United States, 167 F.2d 431, 432 (9th Cir., 1948), said:
We do not question the well-settled rule that a defendant who voluntarily offers himself as a witness and testifies in his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity and credibility. Cross-examination of an accused as to collateral matters should properly be limited to an effort to discredit him as a witness, and the limit is exceeded when the questions are not useful for that purpose and the necessary result, and perhaps the purpose, is merely to prejudice the jury against the defendant.
This court, speaking through the late Judge Dobie and quoting from Coulston v. United States, 51 F.2d 178, 182 (10th Cir., 1931), in Simon v. United States, 123 F.2d 80, 86 (4th Cir., 1941), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L. Ed. 555, held:
In Michelson v. United States, 335 U.S. 469, 482 (1948), 69 S.Ct. 213, 221-222, 93 L.Ed. 168, where the defendant had offered "character witnesses" to testify as to his good reputation, the Court said:
The Court of Appeals for the Sixth Circuit in Banning v. United States, 130 F.2d 330, 338 (1942), cert. denied, 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556, had this to say:
As we have indicated, witnesses, including an accused if he voluntarily submits himself as a witness, may, for purposes of impeachment, be questioned as to prior convictions. See Walker v. United States, 104 F.2d 465, 470 (4th Cir. 1939), where this court, speaking through Judge Soper, said:
But it is clearly established that the cross-examiner may not go further and inquire of a defendant concerning only his prior arrest or indictment for crime. This rule is based upon a clear recognition of the fact that the probative value of such evidence is so overwhelmingly outweighed by its inevitable tendency to inflame and prejudice the jury against the defendant that total and complete exclusion is required in order that the right to trial by a fair and impartial jury may not be impaired. In Coyne v. United States, 246 F. 120, 121 (5th Cir., 1917), the court made the following observations concerning the introduction of evidence of prior indictment:
Giving the cross-examiner in the case at bar the benefit of any doubt, we may charitably assume that at the outset of the cross-examination it was his intention to elicit from the defendant admissions of prior criminal convictions in his efforts to attack the defendant's credibility. Thus, he inquired of the defendant: "Q. Have you ever been caught and convicted of any offense since being here?" However, the form of this question was improper; such question should be specifically limited in scope to conviction of a particular offense.
As the examination progressed, Government counsel pressed further and further into the areas which he must have known were clearly improper. Thus he asked:
In Packineau v. United States, 202 F.2d 681, 688 (8th Cir., 1953), the court said:
Not content, however, with the answers thus far elicited from the defendant, Government counsel then proceeded to supply his own. Placing repeated emphasis upon the defendant's prior arrests, he asked:
This continued questioning constitutes a palpable abuse of the right of cross-examination. The 30 arrests so interjected into the trial is without support or explanation in the record. In oral argument before us it was intimated that the list of the offenses which the prosecutor had in his hand during the cross-examination was partly, or even largely, made up of traffic offenses, evidence of which would have been inadmissible even though the arrests had been followed by convictions.
Rule 26, Fed.R.Crim.P., in pertinent part, provides:
The Government insists that, even admitting that the cross-examination of the defendant was improper, it was not so prejudicial to the defendant as to constitute reversible error. But it is clear that here the primary issue for jury determination was the conflict between the testimony of Pennix, on the one hand, and that of the two self-confessed bank robbers, on the other. Thus, the credibility of witnesses was sharply brought into focus and any error which reflected upon or tended to impeach the credibility of the defendant may not be said to be insubstantial. In Salerno v. United States, 61 F.2d 419, 424 (8th Cir., 1932), where cross-examination of a defendant with regard to his prior arrests was involved, the court said:
To the same effect see Little v. United States, 93 F.2d 401, 408 (8th Cir., 1937), cert. denied, 303 U.S. 644, 58 S.Ct. 643, 82 L.Ed. 1105.
The error here was compounded when the District Court instructed the jury, "Where a witness admits he has a criminal record, you should take that into consideration * * * for the purpose of determining whether or not he is telling the truth * * *."
It is not our function to determine the guilt or innocence of the defendant nor to speculate upon probable reconviction in the event of a new trial. We cannot say, with fair assurance, that the verdict was not substantially influenced by the error. Again, see Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. We think that the errors here were so plain and so affected substantial rights as to be noticed by this court pursuant to Rule 52(b), Fed.R. Crim.P., even though they were not brought to the attention of the trial court. In all fairness, the defendant should be awarded a new trial.
The case will be remanded for further proceedings consistent with the views expressed herein.
Reversed and remanded.
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