Schnackenberg, Kiley and Fairchild, Circuit Judges. Fairchild, Circuit Judge (concurring). Kiley, Circuit Judge, concurring.
SCHNACKENBERG, Circuit Judge.
Richard Keith Gilmore, defendant, has appealed from his conviction on two counts of an indictment, following a trial by jury, of the theft of $1897.95 from Mt. Erie State Bank, Mt. Erie, Illinois, on or about November 1, 1965, the deposits of which were insured by the Federal Deposit Insurance Corporation, said theft being by the use of a gun and putting in jeopardy the life of a bank employee, Lemuel S. Gardner, in violation of Title 18 U.S.C. §§ 2113(a) and (d).
Defendant entered a plea of not guilty and made motions for a bill of particulars, for an order requiring the government to elect between counts I and II, which motions were denied, and for discovery and inspection under rule 16 of the Federal Rules of Criminal Procedure. The motion for discovery and inspection was allowed.
The jury found defendant guilty on both counts and the court denied defendant's motion for a new trial. Sentence to imprisonment for eight years was imposed on defendant.
1. The only eye witness testimony to the November 1, 1965 robbery was given on January 24, 1967 by Lemuel S. Gardner, who when testifying for the prosecution some fifteen months after the crime occurred, identified defendant as the robber of the bank. Gardner testified that he was then "past 70 years old" and he was, then and on November 1, 1965, wearing bifocals.
However, in a typewritten statement made by federal agent Lyle on February 25, 1966 and typed under date of March 10, 1966 (Court Exh. No. 5), the agent wrote:
"Mr. Lemuel S. Gardner viewed Richard Gilmore in a lineup in the Wayne County Courthouse in Fairfield, Illinois. Mr. Gardner picked Richard Gilmore from the lineup and positively identified him as the individual who had held up this bank on November 1, 1965. Mr. Gardner hesitated for quite a while before identifying Gilmore but did make a positive statement that this is the man, 'I am sure of it; however, I will not swear to it.' He stated he is as sure as he can be that this is the man; however, he is afraid of making a mistake.
"After viewing Gilmore, Mr. Gardner stated Gilmore had small, high cheekbones which he had recalled previously and was dark complected and also had the proper height as he recalled. Mr. Gardner stated he would be willing to testify against Gilmore if one other witness could be developed who could identify him in the area. Mr. Gardner stated, in other words, he would like to have a second witness who agreed with him in this matter." [Italics supplied for emphasis.]
In regard to the reference in this statement to the "lineup" from which Gardner picked defendant, it becomes important to note that when Gardner was testifying at the 1967 trial of defendant, the following colloquy occurred on cross-examination:
Q. Mr. Gardner, on the 25th day of February, 1966 did you see Mr. Gilmore in a lineup of a number of people, or when you saw him there in the Fairfield courthouse was he just alone, by himself?
A. He was alone until we went in.
Q. He was alone until, you say, "we went in"?