Before BAZELON, BURGER and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1962.CDC.83
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
Appellant and three co-defendants, Collins, Queen and Simms, were indicted for robbery. Queen and Simms, both juveniles, entered pleas of guilty. Collins and DeLoach were tried together. Collins was acquitted.
Early in the morning hours of January 22, 1961, the four co-defendants drove in appellant's car to a small restaurant. Appellant, Simms and Queen entered, Collins remained in the car. The restaurant had no other customers. Appellant ordered sandwiches to take out and then went to look in the kitchen behind the dining room. As he left the restaurant two witnesses observed him "looking up and down the street." Immediately after appellant left the restaurant one of the two co-defendants who waited for the food order drew a pistol and robbed the cash register of $24.
A witness in a parked car across the street saw the two co-defendants run out of the restaurant and join Collins and appellant in the car, the engine of which had been left running. Appellant later explained the running of the engine as due to a weak battery. The witness noted the license number and police promptly apprehended the car and occupants. A pistol was found under the driver's seat where appellant sat, and the appellant stated that he had put it there after taking it from Simms.
Appellant in testifying said he did not know that Simms and Queen were going to commit a robbery and that he did not knowingly aid them. Appellant admitted receiving $2 of the $24 stolen but said he accepted it before he "knew of the robbery." Collins received no part of the stolen money.
On this appeal we find that the evidence, apart from that to which objections were made, was sufficient to take the case to the jury. But we also hold that it was error to admit certain statements allegedly made by co-defendants in appellant's presence. Appellant also contends it was error to permit certain leading questions. We agree that the leading questions were improper but our disposition of the case makes it unnecessary to determine whether the leading questions would constitute reversible error. Cf. Jackson v. United States, 111 U.S.App.D.C. 353, 297 F.2d 195, 198 (1961). Appellant preserved the points by timely objection.
The testimony of each of the witnesses who purported to detail conversations at the police station has a common fault as evidence against appellant. These witnesses, police officers, the restaurant owner and the witness from the parked car came to the police station for a confrontation immediately after the arrest. These witnesses described the statements of the four alleged robbery participants in terms as follows:
"A. All of them agreed they did sit there [in the car] and talk about a hustle [robbery].
"A. . . . the way he talked in there he [appellant] knew what was going on when they went in that restaurant."
"A. They had discussed pulling a hustle."
"Q. . . . was any statement made by the ...