BASTIAN, Senior Circuit Judge.
Appellants, Robert Calhoun, Jr. and Calvin Fields, are before this court, appealing their convictions under an indictment filed June 27, 1966, charging rape, sodomy, and aiding and abetting each other in the commission of these acts. Both received sentences on all counts. Field's sentence was 4 to 10 years on counts one and two, and 3 to 10 years on counts three and four. Calhoun was sentenced for a period not to exceed 10 years under the Federal Youth Corrections Act.
Appellants rely upon five allegations of error: mention of "the missing witness" rule by the court in its instructions to the jury, and the court's permission to the prosecution to utilize the same rule in argument; identification of Calhoun as insufficient and not corroborated; insufficient evidence and corroboration that either appellant committed sodomy; insufficient evidence that each appellant aided and abetted the other; and that the instructions of the trial judge were unclear and confusing on the issues of identification, corroboration, and aiding and abetting. Because the concurrent sentences bring into operation FED.R.CRIM.P. 52(a) and the interrelationship of some of the counts, these allegations of error are susceptible of pruning for our decisional purposes.
At the outset, we find sufficient evidence present to sustain the rape conviction of appellant Fields. He, known throughout the trial as the one named "Seymour," was present, by his own admission, from the very beginning of the complicated and bizarre sequence of events culminating in the multiple violations of the victim, these events consuming approximately an hour and a half to two hours. Furthermore, when arrested nearby, appellant Fields was breathing hard and perspiring heavily, as if he had just been running; and there were wet spots on the fly of his trousers and grass stains on the knees. This does not exhaust the evidence presented against appellant Fields, but we consider it unnecessary to catalogue here all of the details, for it is apparent from the transcript of the trial that the evidence is overwhelming.
The efficacy of appellants' arguments of insufficient evidence and corroboration to convict for sodomy and
The law in the District of Columbia has long required corroboration of identity, as well as proof of the corpus delicti to sustain conviction for rape. In Kidwell v. United States, 38 App.D.C. 566, at page 573 (1912), our predecessors wrote:
When asked to overrule Kidwell in Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943), this court expressly declined to do so, writing:
Thus, with Ewing firmly establishing Kidwell as the ruling case law of this jurisdiction,
How to apply the tenets of Kidwell is what faces us here. Needless to say, as the cases subsequent to Kidwell and Ewing have demonstrated, this chore has proven somewhat vexatious, as to both the degree and the kind of corroborative evidence required. Such vexatiousness springs from the very nature of appellate review. The price paid for detachment is the confinement to the written record and loss of the opportunity to observe the demeanor of the litigants and witnesses. So to obviate, as much as possible, the danger of simply substituting our subjective view of the evidence for the view of the trial court and jury: "[I]f the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make. In such case, an appellate court cannot disturb the judgment of the jury." Curley v. United States, 81 U.S.App.D.C. 389, at 397, 160 F.2d 229,
The evidence adduced at trial shows that the prosecutrix had ample opportunity to observe Calhoun's features practically face to face. She unhesitatingly identified him shortly after the gang attacks and again in the courtroom. Appellant attempts to discredit her power to observe by arguing that it was too dark to see on the playground. But testimony from two investigating police officers and from a man living nearby who heard the victim's screams established the presence of sufficient light to recognize facial features from at least ten to twelve feet.
The identification of Calhoun very shortly after the assaults is discounted by appellant on the ground that the victim was only nineteen years old, had just endured a stirring emotional experience, and was undoubtedly hysterical. While appellant's description of the victim's physical condition is likely true, the entire sequence of events surrounding her identification of Calhoun discloses little, if any, effect upon her observational and recollective powers.
First, three suspects, including Calhoun, were returned to the scene. The prosecutrix demonstrated sufficient presence of mind to state that she could not recognize one of the three, who was later released. Second, the police officer who arrested Calhoun, an experienced sex squad detective, kept him out of the victim's sight until he had elicited a description from her. She again said that the "ringleader" was dark skinned and wore a fishnet shirt. Thereupon, Calhoun was brought before her and she spontaneously and unequivocally identified him as the "ringleader" who had raped her. Third, when arrested about two blocks from the scene of the crime, Calhoun was indeed wearing a fishnet shirt. The arresting officer's attention was drawn to Calhoun just prior to the arrest because he was "trotting at a fair pace", out of breath, and sweating profusely. Later, inspection revealed grass stains on his trouser knees. Analysis in the F.B.I. laboratory revealed seminal stains on Calhoun's trousers, although these stains were of indeterminate age.
Besides what has already been mentioned, Calhoun's defense was one of alibi. His denial of being at the scene was supported by testimony from appellant Fields. The prosecutrix testified quite candidly that there was no apparent recognition between Fields and Calhoun during the commission of the crime. Calhoun attributed the grass stains on the knees of his trousers to his job as a caddy at a local country club. It was also brought out during the trial that the prosecutrix was or had been suffering from a venereal disease, which she admitted. Dispute arose whether or not her disease was in remission. With all of these facts before them, the jury convicted appellant Calhoun.
We are now asked to decide whether or not the corroboration of identity was sufficient to enable a reasonable mind to fairly conclude guilt beyond a reasonable doubt. In order to do so we must weigh the evidence in this case against the measuring rod of Kidwell and Ewing and their progeny. Supporting his contention of insufficient corroboration, appellant cites the following cases: Franklin v. United States, 117 U.S.App.D.C. 331, 330 F.2d 205 (1964); Walker v. United States, 96 U.S.App.D.C. 148, 223 F.2d 613 (1955); Cooper v. United States, 94 U.S.App.D. C. 343, 218 F.2d 39 (1954). Appellant also refers us to Roberts v. United States, 109 U.S.App.D.C. 75, 284 F.2d 209 (1960); Larkin v. United States, 108 U.S.App.D.C. 239, 281 F.2d 72 (1960); Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1959).
We have carefully examined all of the cases cited to us by appellant and found them all to be outside of the Kidwell-Ewing wake. Appellant's view of the degree of corroboration of the identity necessary to send a case to the jury is not consonant with the case law in this jurisdiction. This court, in the recent case of Thomas v. United States, 128 U.
While we feel the Thomas case adequately supports our affirmance of Calhoun's conviction, we need not stop there. For example, see the following cases: Coleman v. United States, 125 U. S.App.D.C. 246, 371 F.2d 343 (1966); Clemons v. United States, 114 U.S.App. D.C. 273, 314 F.2d 278 (1963); Hughes v. United States, 113 U.S.App.D.C. 127, 306 F.2d 287 (1962).