Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.
After a jury trial, defendant was convicted of the robbery of an Indianapolis, Indiana bank which was insured by the Federal Deposit Insurance Corporation. The defendant was sentenced to serve nine years imprisonment. This is an appeal from the judgment of conviction.
Defendant contends 1) the evidence was insufficient to support the verdict; 2) the testimony that deaf persons are expert identifiers was prejudicial; 3) the Government improperly displayed a shotgun not in evidence; and 4) the Government's exhibits were not connected with the defendant.
On January 31, 1963, at about 1:30 p.m., two men entered the American Fletcher National Bank. Each man wore a dark hat, raincoat, sunglasses and a handkerchief mask. Each carried a pistol in his hand. The shorter of the two robbers proceeded to the north side of the bank where the teller windows are located. He handed cloth sacks to each of the three tellers on duty ordering them to fill the sacks with money. The taller of the two, alleged to be the defendant, stationed himself on the south side of the bank and pointing a gun, ordered the people in the bank not to move. At one time he said, "Fire a couple of shots over their heads and they'll know we're not kidding." Witness Massey, a deaf person, was in the lobby of the bank when the robbery occurred.
During the Government's case in chief, William E. Kindler testified. He had been indicted as a co-defendant with Sears, and had pleaded guilty prior to trial. Kindler testified his companion carried a loaded revolver but that his gun was unloaded. Kindler admitted he went to the teller windows and obtained cash.
While Kindler was on the stand, he was asked who accompanied him at the robbery. The following occurred:
"The Court: Now, Mr. Kindler, I will ask you to state who it was that accompanied you into the bank at 42nd and College in the afternoon of January 31, 1963, at approximately 1:50 p.m.
Mr. Kindler: Well, it wasn't this boy you are trying here, but I can't tell you who it was, you know, I mean it's * * * you know, whenever you give your word to someone, whenever you do something like that, you ain't never supposed to tell who it was."
The Court notified Mr. Kindler that he had no right to refuse to answer the question, but Kindler simply answered "I can't."
As defendant was found guilty by jury verdict of the offense charged, we must, on this appeal, take that view of the evidence, together with inferences reasonably drawn therefrom, most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680; United States v. Hamilton, 7 Cir., 276 F.2d 96. Substantial evidence is all that is required to uphold the conviction. United States v. Zuideveld, 7 Cir., 316 F.2d 873.
Leslie Massey, a deaf person, identified the defendant Sears as one of the robbers. Massey was present in the bank when the robbery occurred. He testified that for a period of at least one and a half minutes, he looked at the robber on the south side of the bank. Massey was from fifteen to twenty feet distant from him. Massey positively identified Sears in court at the time of the trial.
Massey testified, "I am a deaf person, I see things through my eyes that I do not hear. A deaf person watches, observes, and he usually remembers anything unusual that happens, I studied that person [meaning Sears]".
Defendant argues that the identification was of no value because the robber's face was partially covered with a handkerchief and because the robber was wearing sunglasses. In this case, the identification was not based entirely upon the part of the face which could be seen, but also by reason of the stature of defendant Sears. A number of cases have held that the fact the lower part of a robber's face was covered with a cloth does not nullify the testimony that the witness recognized the accused ...