Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles E. Woodward, Judge.
Before EVANS, MAJOR, and TREANOR, Circuit Judges.
Defendant-appellant was prosecuted upon an indictment charging him with kidnaping, seizing and abducting one Billy S. Hamilton in violation of Sections 408a and 408b of Title 18 U.S.C.A. The jury returned a verdict of guilty and the District Court, in accordance with the recommendation dation of the jury, imposed a sentence of death by electrocution. From the judgment of conviction and sentence the defendant has appealed to this court.
For sometime prior to July 11, 1939, defendant had been confined in the Oklahoma State Penitentiary at McAlister, Oklahoma. On the foregoing date he succeeded in escaping from prison. In the course of his escape he obtained a gun from a prison guard. He compelled one Brown to drive him from McAlister into Missouri and then into Kansas. At his order the driver stopped at a point near Pittsburg, Kansas, where the defendant was picked up by Hamilton. Defendant compelled Hamilton to drive him from place to place until they finally arrived at Maywood, Illinois. On July 14, 1939, defendant and hamilton parked at a point outside of Ringwood, McHenry County, illinois. Here they went to sleep in the car, defendant sitting in the driver's seat. According to the defendant's story he had placed the gun under his legs, and during the night was awakened by an effort of Hamilton to remove the gun and escape from the automobile. Defendant's confession stated that Hamilton had seized hold of the barrel of the gun and defendant seized the stock and the gun was discharged and Hamilton was killed. Later the body of Hamilton was found where the defendant had placed it and shortly thereafter defendant was apprehended and returned to the penitentiary in McAlister, Oklahoma.
The act creating the offense with which defendant was charged makes the crime punishable by death "if the verdict of the jury shall so recommend"; and no sentence of death may be imposed by the court without the jury's recommendation.
The grounds for reversal urged here are as follows:
1. The act is unconstitutional.
2. The indictment is void and should have been quashed.
3. Exclusion of material evidence.
4. The jury was permitted to consider improper prejudicial evidence.
We shall not re-examine the decision of thiw Court in Seadlund v. United States.*fn1 We see no reason for questioning the correctness of that decision which upheld the constitutionality of the act.
Defendant urges that the indictment is insufficient to state the offense defined by the act for the reason that the indictment does not allege that he was held "for ransom or reward" and does not allege a holding for any particular purpose within the meaning of the phrase "or otherwise." By the terms oif the act the victim must be held "for ransom or reward or otherwise." The indictment alleges that the defendant kidmaped Hamilton for the purpose of holding Hamilton, takingpossession and control of his automobile, providing defendant with ameans of transportation, aiding defendant to escape from an official of Oklahoma, and taking Hamilton's car by intimidation. In Gooch v. United States*fn2 it was held that the act applied to the holding of an officer to avoid arrest. We are of the opinion that the indictment stufficiently alleges that the victim was held for a purpose within the meaning of the phrase "or otherwise."
We see no ubstance in defendant's contention that the indictment was defective for the reason that it alleged the offense to be "against the peace and dignity of the United States", etc., as distinguished from "against the peace and dignity of the United States of America."
Defendant claims that the District Court erred in excluding as evidence certain lettes written by defendant's wife to defendant. An examination of the record discloses that the letters were not offered in evidence and hence could not have been excluded by the District Court. We assume from the discussion in defendant's brief and from the oral argument that the purpose of offering the letters was to throw light on the mental condition of the defendant in connection with the claim that he was termporarily insane. But it appears that the foundation laid for the introduction of the letters as exhibits was that the cessation of letters from his wife had had a disturbing effect upon defendant. It does not appear that defendant was seeking to prove by the letters that the contents thereof were such as to disturb his mental condition. Consequently, it would not have been error for the trial court to have excluded the letters even if defendant had made a proper offer.
The only serious question presented for our consideration arises out of the admission in evidence of two cards which carried fingerprints of the defendant. One contention of defendant is that the jury was not qualified to make comparison of fingerprints and that only testimony of experts should have been relied upon. It is unquestioned that the fingerprints on the cards were the fingerprints of the defendant, and the prosecution produced experts who testified that certain fingerprints found on Hamilton's automobile were the same as the fingerprints on the cards. The cards were passed to the jury, and the members were permitted to inspect the fingerprints. We do not think that it was error to allow the members of the jury to compare alleged fingerprints of the defendant with fingerprints which are admittedly fingerprints of the defendant after experts have compared them in the presence of the jury and have testified that they correespond.
But a most serious problem was created by reason of the fact that on the backs of the fingerprint cards there was prejudicial information in the form of the "criminal history" of defendant which was obviously incompetent as evidence and which could not have been introduced as such.
The exhibits in question, Government exhibits 49 and 51, were identified and offered solely as fingerprints; and were admitted in evidence as fingerprints. Defendant objected to the introduction of the exhibits but it is not clear that the objection was directed to the matter on the reverse sides of the cards. The Government contends (1) that there was no objection and, consequently, that no question in respect thereto was saved; and (2) that the infromation was not prejudicial.
We agree with the Government that the record does not show any objection to the exhibits except in respect to their character as fingerprint exhibits. But the facts are such that we are of the opinion that we must consider defendant's contention. Government counsel, during or al argument, stated that at the time of the offering of the exhibits he was unaware of the presence of the matter on the reverse sides of the cards and that if he had known of it he would not have offered the exhibits in evidence. It is not questioned that defendant's counsel and the trial judge were ignorant of the existence of any matter on the reverse sides of the cards.
In general, it is the duty of counsel to examine proffered exhibits for the purpose of informing himself of the contents and nature of the exhibits. But in the instant case defendant's counsel justifiably fiably assumed that the exhibits were what they appeared to be, and what the Government counsel stated them to be, - merely cards carrying fingerprints of the defendant. The Government must assume responsibility for the mistake since the exhibits were offered by the Government, had been in the custody and actual possession of the Government and, as between the defendant and the Government, the Government must be charged with knowledge of the presence of the "criminal history" on the reverse sides of the exhibits. And in fairness to Government counsel it should be said that he assumed responsibility for overlooking the "criminal history."
The exhibits were sent to the jury room with the jury for use in its deliberations and without any knowledge on the aprt of the jury that the "criminal history" was improperly before it. Apparently neither Government counsel nor counsel for defendant discovered the fact taht the cards carried the prjeudicial matter until after the jury had returned its verdict. But following the verdict and before pronouncement of judgment defendant filed a motion to have the verdict set aside and a new trial granted.
In United States v. Atkinson*fn3 it was stated: "In exceptional circumstnaces, especially in criminal cases, appellate courts, in the public interest, may, of their won motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings."
In this case the defendant called the District Court's attention to the unfortunate situation as soon as he acquired knowledge of it; and on appeal has presented the question to us.
In his motion for a new trial the defendant urged upon the court, as grounds for setting aside the verdict, that he had been denied a fair and impartial trial and had been substantially prejudicied by reason of the fact that the fingerprint exhibits had brought to the attention of the jury "incompetent, irrelevant, immaterial, prejudicial and inflammatory statements indicating that the defendant had been arrested for, but not convicted of, the offense of rape and other offenses"; and defendant further urged that "evidence of such arrests was wholly and utterly incompetent and gravely prejudicial; and that the said informal memoranda did not, in any event, constitute competent or proper evidence even of the fact of such supposed arrests, but amounted to mere hearsay statements as to the purported facts recited."
The generally accepted rule that a denial of a motion for a new trial is not assignable as error on appeal has been qualified by the statement, and holding, that the ruling will not be disturbedunless it appears that there was an abuse of discretion.
This Court approved such limitations in United States v. Porter;*fn4 and in Starr v. Superheater Co.*fn5 held that the verdict should have been set aside and that there was an abuse of discretion in not granting a motion for a new trial in that case. We think such limitation is recognized by the Supreme Court in Fairmont Glass Works v. Cub Fork Coal Co.*fn6
The fingerprint card, Government exhibit 51, was prepared after the arrest of the defendant in connection with the instant case. It bears a recording date of August 21, 1939. The face of the card is devoted to the fingerprints of defendant. On the back of exhibit 51 is pasted a photograph showing a profile and front view of a man. The front view includes in bold relief a card placed on the chest of the subject, the card carrying the inscription "Cook County Jail 12516". The lower half of the back of the card carries the heading "Ciriminal History"; and under a subheading "City or Institution" is written "McAlester, Okla."; and under another subheading, "Charge", is written "Robbery", and under "Disposition or Sentence" is written "10-yrs."
Fingerprint card, Government exhibit 49, bears a recording date of January 24, 1938. The face of the card carries fingerprints while the reverse side gives what purports to be the criminal history of defendant. The space for photograph is blank. To the right of the blank space appears the follwoing matter: "Date of Arrest - January 18-37; Charge - Dyer Act; Disposition of case - pending." The lower half of the reverse side of the card carries the following information under the heading "Criminal History," the items appearing in red typewritten letters:
"As Oliver Lawrence Dressler, whith aliases, No. 15932 USM, Chicago, Ill. arrested PD. Chicago, 12-28-37; charge rape; dism. for want of prosecution 1-18-38; Arres. Chicago, 1-18-38 charge Unlawful F. to A.P. in St. of Okla. turned over to USM, Tulsa, Okla.(Inf. rec FBI-Chicago, Ill. 3-28-38) RMH (Bu. file No. 88-458-5) (ident FBI-No. 1441816)"
Apparently there is an established practice of the Investigation Bureau of the Department of Justice to place fingerprint reproductions on one side of the card and its own statement of the criminal history of the person on the reverse side. In view of the frequent use of fingerprints in evidence it would seem that special precaution should be taken to prevent the criminal history of the person, whose fingerprints appear on the card, from coming to the attention of the jury. An Arizona court attempted to solve the problem by admitting a fingerprint card in evidence on the condition that the written part be "covered in such manner as to render the printing thereon invisible." The Arizona Supreme Court held that this was not error since, as a result of the Court's order, the jury never saw the printed matter on the card and had no knowledge thereof.*fn7 ...