Major, Senior Circuit Judge, and Kiley and Fairchild, Circuit Judges. Kiley and Fairchild, Circuit Judges (concurring).
MAJOR, Senior Circuit Judge.
Defendant Bates appeals from a judgment of conviction based on Counts 7, 8 and 10 of a ten-count indictment, all of which related in some way to the transportation of stolen automobiles. Count 1 charged Bates, five named defendants and two persons not named with conspiring to transport in interstate commerce and dispose of stolen motor vehicles, in violation of Title 18 U.S.C.A. Sec. 371. Counts 2 through 6 charged substantive violations of Title 18 U.S.C.A. Sec. 2312, by various defendants during 1964. Counts 7 through 10 charged similar violations during 1965. Bates on the substantive counts was charged and found guilty only on Counts 7, 8 and 10 (all alleging 1965 violations), with the interstate transportation of two Chevrolets and a Pontiac. Some of the defendants were convicted, others acquitted (including Bates), on the conspiracy count. Some were convicted, others acquitted, on substantive counts in which Bates was not named.
The trial was lengthy and, as might be expected with so many defendants and charges, including conspiracy, it would be extremely difficult to pinpoint the evidence relevant to the counts on which Bates was convicted. In view of the conclusion we have reached, there is no reason to do so. It is sufficient in this respect to state that we are satisfied that the evidence presented a submissible issue as to Bates and that absent prejudicial error it supports the finding of guilt.
Of the issues urged here as grounds for reversal, only two need be considered: (1) Was it prejudicial for the Court to send to the jury during the course of its deliberation a stipulation entered into by the parties at the commencement of the trial? and (2) Did the Court commit prejudicial error in giving to the jury during the course of its deliberation a supplemental instruction referred to by the government as an Allentype charge?
The stipulation reads as follows:
"It is hereby stipulated and agreed by, among, and between the United States of America, by EDWARD V. HANRAHAN, United States Attorney for the Northern District of Illinois, and PASQUALE ACCETTURA, also known as TONY GRECO, individually and by his attorney, Richard Caifano; GENE BATES, individually and by his attorney, Daniel Becco; and ROBERT KEY, individually and by his attorneys, Harvey J. Powers, Donald Ross, Robert Bailey and Richard LeFevour, that the following persons if called upon to testify, would testify * * *."
Then follow the names of eight persons, together with the testimony which they would give concerning numerous automobiles described in the different counts of the indictment. The only part of the stipulation relevant to the issue under discussion is that which pertains to Dr. John G. Anagnos, which states:
"1. That, on July 19, 1965, he was the owner of a 1964 Oldsmobile two-door automobile, vehicle identification number 884M256512;
2. That, on July 19, 1965, at approximately 9:30 p.m., he parked this automobile in front of 7944 S. Wolcott Street, Chicago, Illinois;
3. That, on July 20, 1965, at approximately 8:30 a.m., he returned to the location where he had parked his automobile and found it to be missing;
4. That he had given no one permission to drive or otherwise move said automobile."
The jury received the case at 4 p.m. on Tuesday, April 4, 1967, and returned its verdict at 11:45 a.m. the following day. Defendant cites numerous instances in which the jury made requests of the Court, but we need be concerned here only with the two matters which give rise to the contested issues as above set forth. At about 10 p.m. on the first day of the jury's deliberation and just prior to excusing the jury for the night, the Court without request from either party and over defendant's objection gave the supplemental charge, subsequently discussed. The jury reconvened the following morning at 9 a.m., and at 11 a.m. requested the Court to permit it to examine the stipulation entered into at the beginning of the trial. On defendant's objection to giving the stipulation to the jury, there was a colloquy between counsel and the Court as to its propriety. The Court overruled defendant's objection and permitted the jury to have the stipulation. At 11:45 a.m., the jury's verdict was returned.
The colloquy clearly reveals the mistaken notion which the able trial judge had as to the purport of the stipulation. Defendant in objecting stated, "It is just as if the jury had not recalled the testimony of a particular witness, and the Court requested the court reporter to prepare a transcript and send it in to the jury. This is extremely prejudicial, and I don't think it is proper." The Court responded, "Of course, it would be objectionable to have a portion of the transcript of one witness on one subject which was testified to by other witnesses and which is the subject of dispute. This is not the subject of dispute. This is stipulated, undisputed evidence. * * * I said they can accept these facts as true and correct because they have been stipulated to. * * * They don't have to weigh the testimony or compare it against other testimony to decide whether or not they believe it. This is undisputed testimony."
Thus, the Court permitted the jury to have the stipulation on the misconceived premise that it contained a recitation of undisputed facts when it clearly shows that it was only a recitation of statements to which each person would testify if called as a witness. This latter view was recognized by the Court at the beginning of the trial when the stipulation was read to the jury by the attorney for the government. At that time the Court stated, "All right. Ladies and gentlemen of the jury, you can assume that each of those witnesses, if he had been called, would testify as indicated with respect to his car and its disappearance on the dates indicated."
In any event, we think permitting the jury to read the stipulation during its deliberations, after it had heard it read during the trial, gave it undue emphasis and was error. Henry v. United States, 6 Cir., 204 F.2d 817, 821. Whether the error was prejudicial to defendant Bates is another matter. The stipulation previously set forth stated that Dr. Anagnos would testify, if called as a witness, that he parked his 1964 Oldsmobile at 7944 South Wolcott Street, Chicago, at 9:30 p.m. on July 19, 1965. Defendant testified that he saw the same automobile at 7:30 p.m. and again at 9:30 p.m. on the same evening outside the motel in Hickory Hills, Illinois. (The Oldsmobile was described in Count 9 of the indictment, in which Bates was not charged.)
The government's effort to justify the Court's action regarding the stipulation is not convincing. On brief it quotes from our decision in Chicago & N.W. Ry. Co. v. Froehling Supply Co., 179 F.2d 133, 135, as follows:
"A stipulation by a party as to the facts in a case must be regarded as evidence of the facts as to which the stipulation was made."
This statement misses the point because, as we have shown, there was no stipulation as to facts but only as to what the ...