Opinion
No. 18034.
Argued December 3, 1963.
Decided January 9, 1964. Petition for Rehearing en Banc Denied March 25, 1964. Certiorari Denied June 1, 1964. See 84 S.Ct. 1641.
Miss Selma Levine, Washington, D.C. (appointed by this court), for appellant.
Mr. Alan Kay, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Frank Q. Nebeker and Victor W. Caputy, Asst. U.S. Attys., were on the brief, for appellee. Mr. B. Michael Rauh, Asst. U.S. Atty., also entered an appearance for appellee.
Before WILBUR K. MILLER, DANAHER and WRIGHT, Circuit Judges.
JUDGMENT
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.
On consideration whereof It is ordered and adjudged by this Court that the judgment of the District Court appealed from in this cause be, and it is hereby, affirmed.
I agree that, in the circumstances of this case, no error affecting substantial rights of the accused was committed during his conviction for robbery. It may be useful, however, to comment upon the erroneous admission into evidence, over objection, of hearsay testimony of a police officer. The officer was asked by the prosecutor:
"Was any identification [of the accused] made at No. 14 Precinct by this person whom you know as John Jones?"
Objection, on ground of hearsay, was overruled. After answering in the affirmative, the officer was then allowed to describe the identification in some detail:
"At the time, I hadn't seen Mr. Jones when he walked into the station. I observed him standing back of the three defendants which we were booking at the time. All three of them had their backs to him and in the process, they had turned around. They were giving us quite a bit of trouble at the book. And Mr. Jones, whom I didn't know him to be at the time, pointed this particular gentleman out as the one who struck Miss Donnelly and took the money."
The admission of hearsay testimony identifying the defendant as the person who committed the offense for which he is on trial is "the most flagrant violation of the hearsay rule * * *. A person, not the witness, has made an out-of-court statement, which was offered in evidence by the witness for the truth of the assertion which it contained." Comment, Extra-Judicial Identification, 19 Md.L.Rev. 201, 218-219 (1959). See also Poole v. United States, 9 Cir., 97 F.2d 423 (1938); People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 (1953); cases collected in Annot., 71 A.L.R.2d 449, 485, n. 13 (1960). Compare Baber v. United States, 116 U.S.App.D.C. 358, 324 F.2d 390 (1963).