Frank Gaynor v. United States , 247 F.2d 583 ( 1957 )

247 F.2d 583

101 U.S.App.D.C. 177

Frank GAYNOR, Appellant,
v.
UNITED STATES of America, Appellee.

No. 13641.

United States Court of Appeals District of Columbia Circuit.

Argued June 20, 1957.
Decided July 11, 1957.

Mr. William B. Bryant, Washington, D.C. (appointed by the District Court), with whom Messrs. William C. Gardner and Joseph C. Waddy, Washington, D.C., were on the brief, for appellant.

Mr. Fred L. McIntyre, Assistant United States Attorney, with whom Messrs. Oliver Gasch, United States Attorney, Lewis Carroll and Victor Caputy, Assistant United States Attorneys, were on the brief, for appellee.

Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.

PER CURIAM.

1

Appellant and two others were indicted and put on trial for housebreaking, larceny and destruction of property in violation of D.C.Code (1951) 22-1801, 22-2201, 22-2202, 22-403. The evidence against appellant was circumstantial and, though sufficient to go to a jury, inconclusive. Before the trial was concluded the court entered judgment of acquittal as to one of the co-defendants. The remaining defendant other than appellant, one Mitchell, was permitted in open court and in the presence of the jury to change his plea of not guilty to guilty. When doing this he was asked by the trial judge whether he admitted that he committed the offense. He replied, 'of being with them, yes'-- 'them' including appellant. Counsel for appellant moved for a mistrial. It will be seen that Mitchell was in all substance permitted to testify against appellant without taking the stand. The incident was clearly prejudicial to appellant and the error in permitting it is obvious. We have accordingly entered judgment reversing and remanding. Cf. Payton v. United States, 96 U.S.App.D.C. 1, 222 F.2d 794.