414 F2d 800 United States v. Simmons

414 F.2d 800

UNITED STATES of America, Plaintiff-Appellee,
v.
Elliott SIMMONS, Defendant-Appellant.

No. 23849.

United States Court of Appeals Ninth Circuit.

June 30, 1969.

John G. Clancy (argued), and Michael J. Keady, of Miller & Keady, San Francisco, Cal., for appellant.

Jerrold M. Ladar (argued), Cecil F. Poole, U. S. Atty., John G. Milano, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before BROWNING and HUFSTEDLER, Circuit Judges, and*BYRNE, District Judge.

PER CURIAM:

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1

Defendant and another were tried and convicted under a charge of taking personal property from another by force, violence, and intimidation on a federal reservation. 18 U.S.C. § 2111. The evidence against defendant was not strong.

2

In its case-in-chief, the government sought to prove a belligerent statement, allegedly made by defendant shortly before the offense, as bearing upon defendant's state of mind. The proof was excluded. Nonetheless, on cross-examination of the co-defendant, government counsel quoted the excluded statement and asked if the defendant had made it. Defendant's objection was sustained, and the jury was instructed to disregard the question.

3

The excluded statement thus brought to the attention of the jury was highly prejudicial to the defendant. In view of the weakness of the government's case we cannot say that government counsel's error was rendered harmless by the court's admonition and that it did not affect the verdict.

4

The judgment is therefore reversed, and the cause is remanded for a new trial.

Notes:

*

Honorable William M. Byrne, Senior Judge, United States District Court for the Central District of California, sitting by designation