Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.
This case arises out of an indictment presented by the Grand Jury in the Southern District of Illinois, Southern Division, containing six counts.
Count one charged Edward Klein, Peter Dounias and Federick Pedote as principals, with the robbery of a postal substation and with the use of a dangerous weapon in connection with such robbery. Count two charged the defendants William Ryan, Harry Hartzell and Harvey Green with being accessories after the fact to such armed robbery of said postal substation. Count three charged the defendants named as accessories after the fact with misprision of felony in connection with such armed robbery.
Count four charged the defendants Klein, Dounias and Pedote as principals with robbery of the same postal substation without the addition that a dangerous weapon was used in connection with said robbery. Count five charged the defendants Ryan, Hartzell and Green as accessories after the fact to such unarmed robbery. Count six charged Ryan, Hartzell and Green with misprision of felony in connection with such unarmed robbery.
The case was transferred to Peoria, Southern District of Illinois, Northern Division, for trial.
Frederick Pedote, a defendant named as a principal in counts one and four, pleaded guilty and appeared and testified as a witness for the Government.
On the trial the jury found the defendants Edward Klein and Peter Dounias guilty as charged on count one and not guilty on count four. The defendants Ryan and Hartzell were found guilty on counts two and three, and not guilty on counts five and six. The defendant, Harvey Green, was found not guilty.
After motions for a new trial, and in arrest of judgment were overruled, the defendants Edward Klein and Peter Dounias were sentenced to the custody of the Attorney General for a period of twenty years to be served in a penitentiary of the United States.
This appeal is prosecuted by Edward Klein and Peter Dounias, who contend that their conviction should be reversed because (a) of alleged error committed in connection with the evidence of Estelle Klein and her impeachment or contraction; (b) because of improper argument to the jury by the attorneys for the prosection; and (c) because of an improper instruction given the jury by the trial court.
On behalf of Peter Dounias, it is also urged that there is no evidence that he was armed at the time of the alleged robbery.
Although it is not formally contended that the evidence is insufficient to support the verdict, the appellants do insist that the evidence is conflicting and that the case is close on the facts. Hence a brief statement of what was established by the testimony may give point to their contentions and serve to assist in determining their validity.
United States postal substation No. 11, was located in a drug store at 394 Callendar Avenue, in Peoria, Illinois, and was owned and operated by one Chester W. Wood. On Sunday, March 13, 1949, at about 9:10 in the evening, the substation was the scene of a robbery - postal funds to the amount of $875.52, and certain registered letters, were taken by the robbers, who also appropriated a ring and watch belonging to Chester Wood, as well as personal funds and other articles belonging to Wood and friends of his then present.
At and immediately prior to the robbery there were only three persons in the drug store: Mr. Wood, the owner; Denzel Jines, a clerk, and Paul Bontemps, a friend.
Shortly after nine P.M. Paul Bontemps, who had been visiting in the store for about two hours, was playing a small radio toward the rear of the store. Chester Wood was using a telephone, located on a dividing wall separating the front of the store from a rear storeroom, with his back to the only store entrance. Denzel Jines, the clerk, was behind the ice cream counter near the front of the store.
Two men entered the drug store. One remained near the front of the store, while the other waving a gun in his hand ordered the clerk, Jines, to "get in the back room." He then ordered Wood to hang up the telephone, and when Wood failed to obey his command, struck him over the head with the gun. Jines was standing immediately beside the man with the gun and was again ordered to go ...