Before WILBUR K. MILLER, WRIGHT and McGOWAN, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1964.CDC.84
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
Appellant was convicted of robbery. 22 D.C.Code § 2901 (1961). He asks reversal of his conviction on two grounds: (1) admission by the trial court of hearsay evidence from a policeman, and (2) disclosure in open court of the division of the jury during deliberation, followed by a coercive supplemental instruction to the jury. We reverse on the latter ground. I.
The Government's evidence showed that a wallet was picked from the pocket of a man on a crowded bus. A policeman was allowed to testify that a woman had told him she had seen the appellant with a wallet in his hand immediately after the victim's pocket was picked. The woman was also a Government witness, and in her testimony she affirmed the officer's hearsay. Pursuant to our prior opinions, we find no prejudicial error. Copes v. United States, 120 U.S.App.D.C. -, 345 F.2d 723, 725 (No. 18,131, decided May 21, 1964), slip opinion p. 6; Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963); Harrod v. United States, 58 App.D.C. 254, 29 F.2d 454 (1928). See also 4 WIGMORE, EVIDENCE (3d ed. 1940) § 1130. For cases on both sides of this issue, see Annot., Extra-judicial Identification, 71 A.L.R.2d 449 (1960); see particularly id. at p. 485 n. 13 for collection of cases holding contra .
It should be noted, however, that the danger of prejudice from hearsay testimony has not disappeared simply because some courts and text writers have found it admissible under some circumstances. In the ascertainment of truth, cross-examination remains the chosen instrument of the common law, and hearsay, particularly in support of, or partial replacement of, another witness' testimony, tends to undermine its effectiveness. In spite of the storied resourcefulness of trial lawyers, none has yet demonstrated an acceptable means for cross-examining hearsay. II.
The jury here, after five hours of deliberation, was unable to agree. Its foreman asked the trial judge two questions: "If the defendant is involved beyond a reasonable doubt, he is guilty?" and "Can the [two] alternate jurors replace the minority voters?" The trial judge answered these questions in open court and then gave the jury his version of the so-called Allen *fn1 charge. Shortly thereafter the jury returned to the courtroom with a verdict of guilty.
The jury's effort to replace its dissenting members made it unmistakably clear to the court, and to the public generally insofar as it was represented in the courtroom, that two jurors were hanging the jury. The pressure on this minority was further increased by the following colloquy between the court and the jury foreman:
"THE COURT: . . . Now who is the foreman?
"THE COURT: Will you rise, please. Don't tell me how you stand, that is, which way, and don't tell me numerically how you stand, but is it a clear minority or are you more or less evenly divided?
"THE FOREMAN: It's a clear ...