Duffy, Senior Circuit Judge, Stevens, Circuit Judge, and Campbell, Senior District Judge.*fn1
DUFFY, Senior Circuit Judge.
Defendant (appellant) was convicted of attempted bank robbery in violation of Title 18 U.S.C. § 2113(a) which statute provides, in part: "Whoever * * * attempts to enter any bank*fn2 * * * or any building used in whole or in part as a bank * * * with intent to commit in such bank * * * any felony affecting such bank * * * shall be fined not more than $5,000 or imprisoned not more than twenty years or both."
Alto Pass, Illinois, is a small town. Among the buildings are a small grocery store and a small bank (Farmers State Bank) which are located adjacent to each other on the main street.
On February 29, 1968, witness John D. Aldrich left the grocery store about 1 p. m. intending to drive his automobile truck which had been parked in front of the store. As he neared his truck, he saw a masked man with rifle in hand standing beside an automobile parked near the truck and in front of the bank. Aldrich testified the masked man pointed the rifle at him and said "get in the bank." They both walked toward the bank and Aldrich attempted to open the door but discovered it was locked. Aldrich told the masked man he could not get into the bank and the masked man who was standing a short distance behind him came up to the building and looked in the window. He then told Aldrich to get out of town, and Aldrich got into his truck and left town.
Aldrich described the car which the masked man was using as a '64 model Oldsmobile with a dark top and a slightly lighter body.
State Trooper Draves who had been a State Trooper for fourteen years, testified that on the same February 29, 1968 afternoon when he was on patrol, he received a radio dispatch in response to which he proceeded east on Route 3, a gravel one-way road. Draves came to a "T" intersection and turned north.
Shortly thereafter, Draves saw a "black over gray" 1964 Oldsmobile approaching him at a high speed going south. Draves thought that the coming car matched the description given in the radio dispatch. The testimony is that the Oldsmobile passed Draves within a distance of about thirty feet. Draves testified that as the driver of the Oldsmobile was passing, he (the driver) "reached over with his right hand and picked up what appeared to be an army carbine off the front seat by him, braced over to the front, the clip facing upwards and pointed it in his general direction." Draves identified defendant (appellant) Rumfelt as the man who was driving the Oldsmobile.
Trooper Draves made a "U" turn and followed defendant's car at a high rate of speed. After covering about two miles, Draves saw the defendant running from the car into a woods, and noted he was carrying a carbine.
Draves made an examination of the contents of the Oldsmobile and found a 1964 Missouri license plate, a brown corduroy jacket and a gold ski mask.
A short while later, and after making contact with a police aircraft, Trooper Draves saw defendant Rumfelt emerging from the woods, clad in a green checkered shirt and wash pants. He was placed under arrest at that time.
Trooper James Turner and Illinois State Police Investigator Reincke began a search of the same woods with a German Shepherd tracking dog. The dog found fresh tracks and led them to a pair of overalls and a blue sweat shirt before losing the scent. After returning to the abandoned Oldsmobile and giving the dog a scent from the ski mask which was found there, the dog led them to a suitcase which contained some clothing, assorted personal toilet items, a letter addressed to Rumfelt and a medication bottle with a prescription made out to Rumfelt. The letter and bottle were introduced into evidence at trial.
The woods in question was surrounded on three sides by water. On the first tracking on February 29th, the dog led the State Troopers to a certain point leading off into the water. The next day, State Troopers returned to this same spot and eventually uncovered an M-1 carbine, a.22 caliber pistol, two clips of ammunition, binoculars in a case, and a belt all in the water. The Government marked these items and attempted to introduce them at trial, but the Court did not admit these items even though witness Aldrich had testified that the man who accosted him had a gun that looked like Government Exhibit 11 (the pistol), and Trooper Draves testified that the man who had passed him in the Oldsmobile had a carbine in his hands.
Defendant contends that the testimony in this case does not establish proof of the act of attempted entry of a bank with intent to commit a felony as ...