322 F2d 988 Blakney v. United States

322 F.2d 988

116 U.S.App.D.C. 238

James E. BLAKNEY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17518.

United States Court of Appeals District of Columbia Circuit.

Argued April 17, 1963.
Decided June 6, 1963, Petition for Rehearing En Banc Denied
Oct. 11, 1963.

Messrs. Sol. M. Alpher and Claire O. Ducker, Washington, D.C. (both Appointed by this court), for appellant.

Mr. Barry Sidman, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Frank Q. Nebeker and Donald S. Smith, Asst. U.S. Attys., were on the brief, for appellee.

Before BASTIAN, BURGER and WRIGHT, Circuit Judges.

BURGER, Circuit Judge.

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1

This is an appeal from judgment of conviction for robbery. The primary issue raised relates to the refusal of the District Court to instruct the jury that a written statement introduced in the process of impeaching a government witness, whose testimony had surprised the prosecution, was to be considered only on the issue of credibility. The factual situation presented by this case is unlike the usual impeachment of 'turncoat' witnesses under D.C. Code Ann. 14-104 (1961), such as we dealt with in Bartley v. United States, 115 U.S.App.D.C. 316, 319, F.2d 717. See Wheeler v. United States, 93 U.S.App.D.C. 159, 211 F.2d 19 (1953). In this case the 'turncoat' witness, when cross-examined by the prosecutor, recanted his original testimony which had taken the government by surprise, acknowledged the truth of his prior out of court statement and adopted that as his testimony. See Robinson v. United States, 113 U.S.App.D.C. 372 at 377, 308 F.2d 327 at 332 (1962). In light of these events, the receipt of the statement, even if assumed, arguendo, to be error, was harmless since it said no more than what the witness had said from the stand.

2

We have examined the record in light of other contentions and find ample evidence to support the verdict.

3

The judgment of the District Court is therefore

4

Affirmed.