author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John William MARX and William Frederick Shriver, Defendants-Appellants.
    Nos. 72-1773, 72-1774.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted April 10, 1973.
    Decided Oct. 3, 1973.
    Rehearing Denied in No. 72-1773 Nov. 12, 1973.

      James M. Gansinger, Denver, Colo., for defendant-appellant Marx.
    David W. Duncan, Durango, Colo., for defendant-appellant Shriver.
    Nathan G. Graham, U. S. Atty. (Robert P. Santee, Asst. U. S. Atty., on the brief), Tulsa, Okl., for plaintiff-appellee.
    Before PHILLIPS, HILL and SETH, Circuit Judges.
   HILL, Circuit Judge.

Appellants were charged in a three count indictment with robbing a Tulsa, Oklahoma, bank in violation of 18 U.S.C. § 2113(a), (d) and (e).

Appellants were found guilty by a jury on each of the three counts. For purposes of sentencing both defendants, the trial court merged Counts I and II. On those merged counts Marx was given a sentence of 25 years and fined $10,000, and on Count III he received a 42-year sentence. Shriver was given a like sentence on the merged counts and 40 years on Count III.

Under the evidence, the facts are uncontroverted. While Houston Adams, president of the Farmers & Merchants Bank and Trust Company (Bank), was returning home from an early morning walk on May 2, 1972, he was assaulted by two men. Brandishing a pistol, these men forced their way into the Adams’ home and ordered Adams to awaken his wife and two teenage children. After gathering the family together, the men boldly stated that they were going to take money from the Bank. To effect this plan, Mrs. Adams was given a cashier’s check for $49,500 drawn on the Nevada State Bank and was ordered to forge the payee’s signature. The check was then handed to Mr. Adams with instructions to take it to the Bank, negotiate it for cash, and leave the money in a local parking lot.

To insure that Adams would not inform authorities, a bomb was strapped to his left side. As a further incentive for obedience, the rest of the family was tied to a bed and a bomb was placed underneath the bed. Adams was warned that if he failed to follow instructions both bombs would be detonated. Adams and Marx then left the home in different cars, and Shriver remained at the home until both returned to the home.

Adams followed instructions as ordered. Upon entering the bank he endorsed the cashier’s cheek, made it payable to himself, and presented it for payment to Jerry 0. Lewis, the bank’s vice president and chief cashier. Nothing was mentioned of the circumstances surrounding this unusual request. Lewis handed the check to Miss Barton, chief teller, who in turn gave Lewis $49,500 in cash. After receiving the money, Adams promptly delivered it to Marx at the designated parking lot. Adams was next ordered to go back home for further instructions. Both then returned to the home in separate' cars.

It was then decided Adams should return to work and act as if nothing had happened. Mrs. Adams and the children were set free, but to prevent notification of authorities the bomb was left strapped to Adams. His wife was reminded that if she wanted to collect life insurance money all she needed to do was call the police. The children were also warned against calling anyone if, they wished to see their daddy again. Marx and Shriver then left the home. Several hours later the ordeal ended when Mrs. Adams received a telephone call informing her the bomb strapped to her husband was deactivated.

Marx and Shriver subsequently were arrested for robbing a federally insured bank. At trial all four members of the Adams family positively identified appellants as their assailants. Some members also testified that during the time appellants held them hostage Marx addressed Shriver by his correct first name. A taxi driver testified that on the day of the robbery he drove Marx to a street address near the Adams home. Government exhibits 12 and 13 were photographs of Marx’s fingerprints found on the cashier’s cheek. Exhibit 8 was $3,000 discovered in the trunk of a car rented by Marx. This money was in the same denomination as that taken from Adams. From this and other evidence, appellants were convicted of bank robbery.

Appellants' most novel contention is that no bank robbery occurred and thus they were improperly, charged and convicted. They argue that if any crimes were committed they were crimes of extortion, obtaining money by false pretenses, and kidnapping, none of which violates 18 U.S.C. § 2113. They suggest that to violate subsection (a) of that statute there must be a taking from an individual of property “belonging to, or in the" care, custody, control, management, or possession of . . . ” a bank, it follows that as Adams endorsed the cashier’s check, he is ultimately responsible for its payment. Thus, appellants further argue, possession and title to the money are in Adams rather than the Bank. We cannot subscribe to this reasoning and argument.

It is correct to conclude that § 2113(a) is not directed toward the crimes of extortion and obtaining money by false pretenses; still more is involved in this case than the above two crimes. Robbery is committed when a person:

. . . by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association. . . . § 2113(a).

Whether the bank was robbed depends upon whether or not Adams turned the money over to appellants in his capacity as an officer of the bank. To reach this determination we must first decide whether appellants intended to rob the Bank or Adams personally. While Adams was being held hostage Marx told him “we are not robbing you, but you represent a bank and we are going to use you and your family to get some of that bank’s money.” Corroborative of this intent was Marx’s demand that Adams cash the check and then bring the check back. Obviously Adams could return the check only in his capacity as a bank officer. Appellants later told Adams’ 13-year-old daughter that her father could get something from the bank they wanted — money. Appellants clearly intended to rob the Bank.

The second question is at what point did the Bank lose custody, control or possession of the money. Appellants argue that title and possession transferred when the money was turned over to Adams. We cannot agree, for it is apparent the Bank lost possession at the moment Marx took the money from Adams at the parking lot. Testimony of Lewis showed that the money given Adams belonged' to the Bank. Barton testified she did not give Lewis marked bills because she was transferring money to a bank officer. Adams’ excuse for cashing the check was because several good bank customers needed the money quickly. Without question Adams was given bank money for banking purposes, and thus not until Marx forcefully took it from him did the Bank lose possession and control. Appellants were therefore properly convicted of bank robbery. See United States v. Jakalski, 237 F.2d 503 (7th Cir. 1956), cert. denied, 353 U.S. 939, 77 S.Ct. 817, 1 L.Ed.2d 761; Rumfelt v. United States, 445 F.2d 134 (7th Cir. 1971), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 94.

Marx argues the trial court erred in refusing to instruct the jury on appellant Shriver’s theory of defense, that being if a crime were committed it was the crime of extortion or obtaining money by false pretenses rather than the crime of bank robbery. Marx’s trial counsel, however, informed the trial court he did not object to the court’s proposed instructions and that Marx had no additional instructions to offer. Failure to object at trial to instructions given to a jury precludes objection on appeal; hence this issue has not been preserved for our review. Glazerman v. United States 421 F.2d 547 (10th Cir. 1970), cert. denied, 398 U.S. 928, 90 S.Ct. 1817, 26 L.Ed.2d 90. In addition, this contention has been answered by our prior discussion of the crime actually committed.

Marx next alleges error in admitting into evidence $3,000 in cash taken from his automobile six weeks after the crime. He urges that under two situations only can money be admitted: first, when there is proof of an unlawful taking completed with convincing identification of the property stolen; second, when a defendant impecunious prior to robbery has unexplained possession of large amounts of money after the robbery. The conclusion follows that as there is no proof of Marx’s prior poverty nor that the $3,000 in his possession is an unusual amount of money, it is error to admit the money into evidence. We agree with Marx’s statement of law, but the money can nevertheless be admitted on grounds of relevancy. For it to be admitted, all that is required is that it have enough rational connection with the issues to be considered a factor contributing to the deciding of the issues. United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945). Testimony of Lewis indicated the $49,500 consisted of $100 and $20 bills. The money found hidden in Marx’s ear trunk was all in $100 bills. Admission of this exhibit is relevant and has probative value to show similarity between money in Marx’s possession and that stolen from the Bank. We cannot say the trial court abused its discretion in finding the $3,000 in cash relevant. United States v. Brewer, 427 F.2d 409 (10th Cir. 1970).

Both appellants charge error in the trial court’s failure to set bond prior to trial. Their position is that as bank robbery is not a capital case, in light of recent Supreme Court decisions, the trial court committed reversible error in refusing to admit them to bail. We agree failure to set bail is error, but appellants should at that time have taken an appeal to this court if they wished to raise the issue. See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). No justification has been given for their failure to appeal the trial court’s denial, and thus it is too late to do so after conviction. See United States v. Williams, 416 F.2d 4 (5th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); Hemphill v. United States, 392 F.2d 45 (8th Cir. 1968), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149; Hewitt v. United States, 110 F.2d 1 (8th Cir. 1940), cert. denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409. There is, furthermore, no showing that appellants’ incarceration impeded their preparation for trial or otherwise prejudiced appellants concerning their right to a fair trial.

Appellants next allege error in the trial court’s failure to declare a mistrial after two offered but unadmitted government exhibits were mistakenly given to jurors to take to the jury room. Exhibit 9 is a consent-to-search form signed by Shriver concerning the search of his house. Exhibit 10 is a package of $1,000 in $20 bills found in Shriver’s house. The money was wrapped in foil and marked exactly as was the $3,000 found in Marx’s car. Appellants contend the jury knew the unadmitted money was in the same denomination as that taken from Adams. They also argue that both the $3,000 and $1,000 were wrapped in foil, thus enabling the jury to conclude money found in Shriver’s house is related to money found on Marx’s premises. Supporting their argument is the trial court’s refusal to admit exhibits 9 and 10 on grounds their prejudicial value outweighed any probative value. It is difficult for us to follow the reasoning of the trial judge in admitting the package of bills taken from Marx and rejecting that taken from Shriver. From the record we deem both to have been admissible.

Generally, the law in this area is settled; if there is the slightest possibility that harm could have resulted from the jury’s viewing of unadmitted evidence, then reversal is mandatory. Dallago v. United States, 138 U.S.App.D.C. 276, 427 F.2d 546 (1969); United States v. Adams, 385 F.2d 548 (2d Cir. 1967). Under this rule we may also determine whether the unadmitted exhibits 9 and 10 harmed or prejudiced appellants. Four witnesses who observed appellants for approximately five hours positively identified them as assailants. A taxi driver’s testimony placed Marx in the vicinity of the Adams’ home during the robbery. Marx’s fingerprints were found on the bogus cashier’s check. We are of the opinion that under all the direct and circumstantial evidence appellants’ guilt is overwhelming, therefore the jury’s viewing of exhibits 9 and 10 does not constitute prejudicial error. Sawyer v. United States, 112 U.S.App.D.C. 381, 303 F.2d 392 (1962), cert. denied, 371 U.S. 879, 83 S.Ct. 150, 9 L.Ed.2d 116.

Shriver contends there is inadequate evidence to prove he carried a weapon capable of placing the life of Adams “in jeopardy” as required by 18 U.S.C. § 2113(d). The second count of the indictment alleges:

While committing the offense described in Count I of this indictment, John William Marx and William Frederick Shriver did willfully, unlawfully and with felonious intent, put in jeopardy the life of said Houston Adams by the use of a dangerous weapon, to wit, a pistol, and by the use of a device which said John William Marx stated was a bomb.

Shriver’s position is the “bomb” used to threaten Adams was incapable of inflicting harm; it was inoperable and therefore incapable of placing a life in an objective state of jeopardy as required by the definition of “dangerous weapon.” Shriver further asserts only Marx used a pistol and as Shriver was not connected with a pistol, he should not have been convicted under Count II.

We reject Shriver’s position for several reasons. First, as there is no evidence the gun held by Marx was not loaded, it was within the province of the jury to infer that it was. Lewis v. United States, 365 F.2d 672 (10th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 978, 17 L.Ed.2d 875. Shriver and Marx were charged as principals in the indictment because the acts of Marx in brandishing the pistol were as a matter of law the acts of Shriver. See Caton v. United States, 407 F.2d 367 (8th Cir. 1969), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773. Second, the; fake bomb also constitutes a dangerous weapon because it placed Adams in reasonable expectation of death or serious bodily injury as required by § 2113(d). United States v. Beasley, 438 F.2d 1279 (6th Cir. 1971), cert. denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110. We thus find the evidence proved beyond a reasonable doubt that acts of Shriver placed Adams’ life in an objective state of jeopardy.

A related argument proffered by Shriver is that the trial court committed reversible error in instructing the jury that “in jeopardy” could mean simply fear of death as opposed to the actual risk of death. The jury was instructed :

To “put in jeopardy the life” of a person “by the use of a dangerous weapon or device” means, then, to expose such person to a risk of death, or to the fear of death, by the use of such dangerous weapon or device. (Emphasis added).

Shriver asserts this charge was error insofar as the jury could have found that “fear of death” rather than an objective state of danger constituted jeopardy. Also, without a finding that lives were objectively in danger there would be no way to distinguish subsection (d) of § 2113 from subsection (a) which prohibits robbery “by force or violence, or by intimidation.”

Shriver did not object to the charge as given at trial. Before passing on the issue, under Rule 52(b), F.R.Crim.P., we must determine whether the charge, if erroneous, constitutes plain error. It is our belief the court in United States v. Beasley, supra, properly explains what is meant by “jeopardy” requiring an objective state of danger. In Beasley the court noted that § 2113(d) requirements are satisfied when the defendant is shown:

(a) to have created an apparently dangerous situation, (b) intended to intimidate his victim to a greater degree than the mere use of language, (c) which, does in fact, place his victim in reasonable expectation of death or serious bodily injury. (At 1282-1283).

A jury determined that Adams’ life was objectively in a state of danger. There were two pistols employed by appellants to further the crime. A pistol was used by appellants to gain entrance into the Adams’ home. Shriver carried around a bag containing what appeared to be a pistol with a silencer attached to it. As stated previously, the jury may infer these pistols were loaded. Lewis v. United States, supra. Thus when the jury was instructed that jeopardy meant fear of death, it had no evidence before it proving that Adams’ life was not in an objective state of danger. Under these circumstances we can say the jury could have found beyond a reasonable doubt that Adams was exposed to the risk of death, and any mention in the charge relating to “fear of death” was harmless error.

Shriver charges he was improperly convicted under Count III of the indictment because there was no “accompanying” as required by § 2113(e). Count III reads:

While committing the offense described in Count I of the indictment, John William Marx and William Frederick Shriver did force the said Houston Adams to accompany them without the consent of the said Houston Adams, and did force Mrs. Houston Adams, Kim Adams, and Kerri Adams to accompany them without the consent of the said Mrs. Adams, Kim Adams, and Kerri Adams. (Emphasis added).

Shriver argues that “accompany” connotes a physical juxtaposition among the participants and a sense of movement or travel. He rationalizes that although Adams and his family were somewhat contained in their activities, they were never physically traveling with either appellant.

Our research and a careful examination of the evidence adduced by the government convinces us Marx and Shriver did not violate § 2113(e) during commission of the bank robbery. Although § 2113(e) adopts the words “or forces any person to accompany him without the consent of such person,” the legislative history suggests it was enacted to combat the multitude of murders and kidnappings occurring during attempts by bank robbers to flee the scene of the crime. S.Rep.No.537, 73d Cong. 2d Sess. (1934); H.R.Rep.No.1461, 73d Cong. 2d Sess. (1934). While the statute does not explain the elements of kidnapping and we have been unable to find any cases laying out these elements under § 2113(e), we believe they are similar to those under the common law and the federal kidnapping statute. Under common law “kidnap” meant to take and carry away any person by force and against his will. Under the federal kidnapping statute, 18 U.S.C. § 1201, kidnapping is an unlawful seizure and holding followed by interstate transportation. Gawne v. United States, 409 F.2d 1399 (9th Cir. 1969). Although we do not feel it is necessary under § 2113(e) to transport the seized person across state lines, we do feel more is required than forcing Adams to enter his own house or forcing the Adams family to move from the den to a bedroom. We therefore must conclude it was error to convict appellants under Count III.

In view of the sentences as pronounced and what we have already said, we need not give consideration to the question of concurrent sentences.

Accordingly, the sentence and conviction under Count III is hereby set aside and vacated. The case, insofar as it pertains to Count III, is remanded with directions to dismiss that count of the indictment. In all other respects the case is affirmed.

      . 18 U.S.C. § 2113(a). Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association, .
      ❖ * * * s¡:
      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      18 U.S.C. § 2113(d). Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
      18 U.S.C. § 2113(e). Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    Edward Garrett HOSKINS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 72-2500.
    United States Court of Appeals, Fifth Circuit.
    Sept. 14, 1973.

      Wilfred C. Varn, Tallahassee, Fla., Court-appointed for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tampa,Fla., Wallace E. Allbritton, Asst. Atty. Gen., William D. Hopkins, State’s Atty., Tallahassee, Fla., for respondent-appellee.
    ON PETITION FOR REHEARING
    Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

We step back into the batter’s box, having allowed one to go by us and tipping another, in hopes that on our third and final swing we can avoid a judicial strike-out.

Edward Garrett Hoskins was indicted on May 21, 1959, in the Circuit Court of Leon County, Florida, for attempted robbery. Over eight and a half years later, on January 18, 1968, he was tried and convicted for that crime.

After exhausting his state remedies, Hoskins petitioned the federal court for habeas relief alleging that the state’s inordinate delay in bringing him to trial had deprived him of his Sixth Amendment right to a speedy trial. The District Court denied the relief and Hos-kins appealed. Though we found that the record disclosed an “unjustified an inordinate prosecutorial delay” and though Hoskins strenuously urged that Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26, required automatic reversal in such an instance, we let the opportunity to reverse and render go by. Hoskins v. Wainwright, 5 Cir., 1971, 440 F.2d 69. Instead, we remanded the case to the District Court for an evidentiary determination of whether Hos-kins had suffered any prejudice by the delay. Realizing now, however, that prejudice is not the sine qua non of judicial relief for a deprivation of a defendant’s Sixth Amendment right to a speedy trial, we reverse the District Court’s subsequent denial of relief based upon a “no prejudice” finding and issue the writ.

The Sixth Amendment

The Sixth Amendment to the Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Although the right had its roots in the Twelfth and Thirteenth Century commissions of gaol delivery and oyer and terminer, and found expression in the Magna Carta, Coke’s Institutes, and the Sixth Amendment, it was not until 1967 that the United States Supreme Court declared that the right was a fundamental guarantee of the Sixth Amendment which, acting through the Due Process Clause of the Fourteenth Amendment, was binding on the States. Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988,18 L.Ed.2d 1.

Naturally, there were many questions to be answered. To what extent did Klopfer require that States move to prosecute persons indicted but beyond the territorial confines of the state in custody of a sister state or the federal government? To what extent should the decisions delineating the right be applied retroactively ? What criteria should a court use to assess a defendant’s claim that his speedy trial right had been abused.

The Duty To Prosecute The Extraterritorial Detainee

In Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, the Supreme Court answered the question as to the extent of the State’s duty to bring a defendant who is incarcerated by federal or state authorities beyond its territorial jurisdiction to trial. The Court held that a state is under an affirmative obligation by virtue of the Sixth Amendment, as interpreted in Klopfer, to make every good faith effort to bring the accused to trial.

Smith was indicted in Harris County, Texas, in 1960 on a charge of theft. At the time of his indictment he was incarcerated in the federal penitentiary at Leavenworth, Kansas. Shortly after receiving the indictment, Smith began a series of efforts, culminating in a petition for writ of mandamus to the Supreme Court of Texas, to be tried. Although procedures were readily available for Smith to be tried under a writ of habeas corpus ad prosequendum and, as a matter of comity, federal authorities made every effort to accommodate states’ requests in this regard, Smith was denied all relief. On certiorari, the United States Supreme Court reversed.

The Court recognized that the three basic interests served by the Speedy Trial Clause were “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself,” 393 U.S. at 378, 89 S.Ct. at 577, 21 L.Ed.2d at 611, quoting United States v. Ewell, 1966, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630. To the degree that any man might be adversely affected in any of these particulars by a substantial delay, he would be “prejudiced”. Examining the plight of the accused who is incarcerated in another jurisdiction on another charge in light of these three types of “prejudice”, the Court held that the State may not deprive this type of defendant of the right merely because there is some minor logistical barrier to bringing the case to trial.

The presence of a detainer and the fact that the defendant was incarcerated on another charge could substantially prejudice him in two important respects. First, he might lose entirely the possibility that any sentence imposed in the event of conviction of the second offense might be served concurrently with the remaining term of his federal or state sentence. Second, in many instances the presence of the detainer for future trial might prejudice his opportunity for clemency, pardon, parole, or trusteeship.

Likewise, the Court found that the anxiety caused by the outstanding accusation had a debilitative effect on rehabilitative efforts.

Finally, the Court held that the likelihood of actual impairment of the defense of the case was severely more acute when the accused was incarcerated in another jurisdiction:

“Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, his ability to confer with potential defense witnesses, or even to keep track of their whereabouts, is obviously impaired. And, while ‘evidence and witnesses disappear, memories fade, and events lose their perspective’, a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time.”

393 U.S. at 379-380, 89 S.Ct. at 578, 21 L.Ed.2d at 612 (footnote omitted). Thus, in the present case, it would seem that Florida’s suggestion that it was under no duty to proceed with the prosecution of Hoskins because he was incarcerated in Georgia is refuted by the clear holding of Smith v. Hooey.

Retroactivity

But the State of Florida contends that our decision in Henderson v. Circuit Court of the Tenth Judicial Circuit, 5 Cir., 1968, 392 F.2d 551, rather than Smith v. Hooey, was the controlling law for the time period in question. Implicit in this argument is the contention that Smith v. Hooey may not be given retroactive application. We reject that argument for two very important reasons.

First, on June 14, 1967, approximately a year and a half before Smith v. Hooey, the Supreme Court of Florida held that the State was constitutionally bound by both the federal and the state constitutions to avail itself of existing means to bring a person being held under a detainer warrant in another jurisdiction to trial. Dickey v. Circuit Court, Fla., 1967, 200 So.2d 521. Thus, the right was recognized in Florida well before Smith v. Hooey. Indeed, it was only in light of this decision of the Florida Supreme Court that petitioner Hoskins was able to get the writ of mandamus which ultimately led to his trial.

More importantly, however, is the rejection of Florida’s argument by the United States Supreme Court in Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26. Dickey was a case substantially similar to Hoskins. Dickey was the subject of a Florida arrest warrant issued on July 1, 1960, for armed robbery. At the time this warrant was issued, Dickey was in custody on a federal bank robbery charge of which he was subsequently convicted. Several times throughout the period he was serving his federal sentence, Dickey sought trial on the Florida charge. In December of 1967, the State Attorney saw the handwriting on the wall, i. e., Dickey v. Circuit Court, supra, and proceeded with the filing of an information. Trial was held on February 13, 1968. Dickey was convicted and sentenced to 10 years’ confinement to run consecutively with the remainder of his federal sentence.

In the Supreme Court, Florida argued:

“that the right of the petitioner under the Federal Constitution did not arise until this Court’s decision in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and that not until Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), was there a constitutional requirement that the State press for trial of a defendant in custody in another jurisdiction.”

398 U.S. at 36-37, 90 S.Ct. at 1568, 26 L.Ed.2d at 31. The Court held, in spite of this argument, that Dickey’s Sixth Amendment right had been abused, and that reversal of the judgment and dismissal of the indictment was required. Although the Court did not discuss the extent to which Smith v. Hooey was to be applied retroactively, implicit in its holding is a rejection of the contention that cases tried before Smith v. Hooey are to be controlled by Henderson, supra.

Thus, we hold that to the extent which it is inconsistent with Dickey, Henderson must yield. For the case at bar, that is all that need be said. Hoskins, like Dickey, was tried before Smith v. Hooey. Hoskins, like Dickey, was denied his Sixth Amendment right to a speedy trial. Hoskins, like Dickey, must go free. We rejected Florida’s non-retro-activity argument in Hoskins v. Wainwright, 5 Cir., 1971, 440 F.2d 69, 71-72, and we reject it again now. See also May v. Georgia, 5 Cir., 1969, 409 F.2d 203. It is the law of the case and the law of the land. And there it ends.

Criteria For Assessment Of The Right

In many respects, modern speedy trial law began with Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. There, speaking for a unanimous Supreme Court, Mr. Justice Powell enunciated the four criteria which must be evaluated in each case, on an ad hoc basis, to assess a speedy trial claim :

[i] “Length of delay,

[ii] the reason for the delay,

[iii] the defendant’s assertion of his right, and

[iv] prejudice to the defendant.”

407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. The fourth factor, prejudice, was further subdivided according to “the interest of defendants which the speedy trial right was designed to protect.” Thüs, the Court held that a defendant could be “prejudiced” by:

[a] oppressive pretrial incarceration,

[b] anxiety and concern, and

[c] impairment of the defense.

But in announcing this matrix for the analysis of Sixth Amendment speedy trial claims, the Court hastened to point out:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.

407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

If this means what it says, there must be some point of coalescence of the other three factors in a movant's favor, at which prejudice — either actual or presumed — becomes totally irrelevant. And so we hold.

Prior to Barker the law required a showing of prejudice as a prerequisite to relief. In Dickey, supra, Mr. Justice Brennan commented at length upon this requirement, and the problems it posed:

Although prejudice seems to be an essential element of speedy-trial violations, it does not follow that prejudice —or its absence, if the burden of proof is on the government — can be satisfactorily shown in most cases. Certainly, as the present case indicates, it can be established in some instances. It is obvious, for example, if the accused has been imprisoned for a lengthy period awaiting trial, or if the government has delayed in clear bad faith. But concrete evidence of prejudice is often not at hand. Even if it is possible to show that witnessés and documents, once present, are now unavailable, proving their materiality is more difficult. And it borders on the impossible to measure the cost of delay in terms of the dimmed memories of the parties and available witnesses. As was stated in Ross v. United States, 121 U.S.App.D.C. 233, 238, 349 F.2d 210, 215 (1965): “[The defendant’s] failure of memory and his inability to reconstruct what he did not remember virtually precluded his showing in what respects his defense might have been more successful if the delay had been shorter. . . . In a very real sense, the extent to which he was prejudiced by the Government’s delay is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice.” Similarly, there is usually little chance of conclusively showing the harm sustained by an accused as a result of public accusation. One commentator has stated that “[t]here is no way of proving the prejudice to the accused which occurs outside the courtroom . . . the public suspicion, the severing of family and social ties, and the personal anxiety.” Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev. 846, 864. Nor, of course, is there any ready way of establishing the prejudice to community interests from delay.
Despite the difficulties of proving, or disproving, actual harm in most cases, it seems that inherent in prosecutorial delay is “potential substantial prejudice,” United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 1157 (1967), to the interests protected by the Speedy Trial Clause. The speedy-trial safeguard is premised upon the reality that fundamental unfairness is likely in overlong prosecutions. We said in Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776, 15 L.Ed.2d at 630, that the guarantee of a speedy trial “is an important safeguard ... to limit the possibilities that long delay will impair the ability of an accused to defend himself,” and Judge Frankel of the District Court for the Southern District of New York has stated that “prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years.” United States v. Mann, 291 F.Supp. 268, 271 (1968).

398 U.S. at 53-54, 90 S.Ct. at 1576, 26 L.Ed.2d at 41. His suggestion was to establish a triggering point beyond which prejudice would become an issue only if the government wished to argue that the error was harmless beyond a reasonable doubt. See Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

But Barker tells us that the quest for this point is unnecessary, for none of the four criteria are “either necessary or sufficient”.

In the case at bar, that makes our task simple. On Hoskins’ first appeal to this Court we found that “the record before us establishes the element of unjustified and inordinate prosecutorial delay”, 440 F.2d at 71, and in accordance with the state of the law at that time, we remanded to the District Court for a determination of whether the delay had prejudiced Hoskins. But the law has changed.

“Inordinate” certainly means that the length of the delay between the indictment and Hoskins’ trial was impermissibly long. “Unjustified” means that the State has failed to offer any acceptable reason for the delay to the Court. And no one can say that Hoskins has not vigorously asserted his right. That leaves only prejudice.

On the record before us we have an unexplained eight and a half year delay between accusation and trial, and a petitioner who continually made demands upon the State for a trial. Given these facts, we hold that the petitioner’s right to a speedy trial, as guaranteed by the Sixth Amendment, has been abused. Prejudice is simply no longer an issue.

Reversed and remanded.

      . Hoskins v. Wainwright, 5 Cir., 1971, 440 F.2d 69.

      . Our per curiam opinion in Hoskins v. Wainwright, 5 Cir., 1972, 472 F.2d 158, tipped the case and it rolled out of bounds. That opinion is hereby vacated.

      . After our initial remand, the District Court “ordered” the state court to hold an evidentiary hearing. In a noble gesture of judicial statesmanship, Chief Judge Ben C. Willis of the Circuit Court of Leon County, Florida, accommodated the federal Judge’s desires and held a hearing — although it is clear that he did not have to do so. Compare Milton v. Wainwright, 5 Cir., 1968, 396 F.2d 214; Cline v. Beto, 5 Cir., 1969, 418 F.2d 549; with Anderson v. Beto, 5 Cir., 1972, 469 F.2d 1076; Dixon v. Beto, 5 Cir., 1973, 472 F.2d 598. He held — and the District Court below adopted his holding — that the state had effectively demonstrated that Hoskins’ case was not prejudiced by the delay.
      To the extent that this holding is a finding of fact, it is “clearly erroneous”. To the extent that it is a conclusion of law, it is likewise in error. But this is an alternative basis of our holding, and we point out these facts only to make our discussion complete.
      Assuming for the moment, as the court did below, that “prejudice” as a requirement for Sixth Amendment relief in a speedy trial case means impairment of the defense, we find that the record discloses sufficient instances of impairment to require reversal. A time delay might impair a defendant’s case in many ways. Speaking for a unanimous Supreme Court, Justice Powell recently spoke of two:
      If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
      Barker v. Wingo, 1972, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 118.
      Hoskins’ main defense was alibi. One of the two people^ who he contends could have established his alibi, his father-in-law Ben Walls, died on August 17, 1962, three years and three months after an indictment about which Hoskins was not even aware at that time.
      And while Hoskins’ defense waned the State’s case waxed. The State’s case consisted primarily of the testimony of three eye witnesses. There were crucial variances between their immediate accounts of the incident to the investigating police officer, and their subsequent testimony nearly nine years later. Mr. and Mrs. Atkinson, both government witnesses, told the investigating officer that the would-be robber had worn a stocking which was pulled way down on his chest. At the trial they testified that the stocking was merely pulled down to his chin, and that the robber had a large protruding Adam’s apple. This was a crucial point of identification as to Hoskins. Mrs. Atkinson also told the investigating officer that the intruder had big brown eyes. Hoskins had only one eye, and it was blue.
      These particulars convince us that even if impairment of the defendant’s case was a requisite under the Sixth Amendment— which we emphasize it is not! — the facts of this case are so similar to Dickey, supra, that we must reverse.
      But while impairment of the defense may be the most serious type of prejudice that can be suffered, it is clearly not the only type of prejudice recognized by the Sixth Amendment. The Supreme Court has also recognized that a person under indictment and subjected to a lengthy, unjustified delay may also be “prejudiced” by [i] lengthy pretrial incarceration, or [ii] the personal anxiety attendant upon public accusation. Mr. Justice White has suggested that it is at these levels of “personal prejudice” that judicial scrutiny should initially be focused:
      “A defendant desiring a speedy trial, therefore, should have it within some reasonable time; and only special circumstances presenting a more pressing public need with respect to the case itself should suffice to justify delay. Only if such special considerations are in the case and if they outweigh the inevitable personal prejudice resulting from delay would it be necessary to consider whether there has been or would be prejudice to the defense at trial. ‘[T]he major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense’.”
      Barker v. Wingo, supra at 537-538, 92 S.Ct. at 2195, 33 L.Ed.2d at 121 (White, J. concurring) (Emphasis added), quoting in part, United States v. Marion, 1971, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478.
      The Sixth Amendment guarantees to every criminal accused the right to a “speedy and public trial”. It is a personal right. And when an accused is deprived of this right he suffers “prejudice” from the mere loss of the right.
      The crux of our decision today is simply this. At some juncture in a criminal prosecution the government’s lengthy, inexplicable delay, in the face of vigorous demands for an immediate trial, is so offensive to the Sixth Amendment’s guarantee of a speedy trial that a Court must intervene regardless of whether the defendant has been incarcerated, subjected to public scorn and obloquy, or impaired in his ability to defend himself. But in those cases where the analysis of the other three Barker factors does not automatically compel this result, courts must be ever vigilant to make sure that the term “prejudice” is not used synonymously with “impairment of the defense”. As our Brother Godbold has noted:
      “The prophylactic effect of the clause as a protection of the innocent is substantially eroded if the fact of conviction in unimpaired trials removes from appellate consideration the interest of minimizing the consequences of incarceration and public accusation.”
      Godbold, Speedy Trial — Major Surgery for a National Ill, 1972, 24 Ala.L.Rev. 265, 285.

      . Other questions, not germane to this appeal, have been answered by courts presented with speedy trial issues. See, e. g., United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (pre-arrest, preindictment delay not counted for purposes of Sixth Amendment motion absent a showing of actual prejudice); United States v. Strunk, 1973, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 [1973] (Dismissal is only remedy for abuse of speedy trial right); United States v. Dyson, 5 Cir., 1972, 469 F.2d 735 (Statute or court-imposed rule may require more stringent standard than that imposed by Constitution).

      . As the Supreme Court pointed out, this tolled the Statute of Limitations under Florida law. 398 U.S. at 32 n. 3, 90 S.Ct. 1564.
      It is important to note that most of the delay in the trials of Smith, Dickey, and Hoskins occurred prior to the imposition of the obligation on the States in Klopfer. Thus, it is clear that in post -Klopfer trials the State must account for pre-Klopfer delay. The applicability of Klopfer to preKlopfer cases is an issue which we need not decide at this juncture.

      . In this respect, Hoskins’ claim of prejudice would be greater than Dickey’s, were we to base our decision on a finding of prejudice. See note 3, supra.

      . The Court emphatically rejected the so-called “demand/waiver rule” which stated that an accused must either demand a speedy or immediate trial or be deemed to have waived it. Rather, the probative value of defendant’s assertion of his right was to be taken into account with the other factors.
      The Court also rejected the opposite extreme — a fixed time period beyond which the Sixth Amendment would be violated — though it recognized the authority of states and lower federal courts to impose fixed time periods by statute or rule.

      . The factors coincide, with the exception of the Court’s rejection of the waiver concept, with standards announced for this Circuit in United States v. Auerbach, 5 Cir., 1969, 420 F.2d 921, 924. Thus, this Court’s determination in Hoskins v. Wainwright, 5 Cir., 1971, 440 F.2d 69, that the right had been denied is still valid. Since Barker, we have consistently employed the Barker methodology. E. g., Arrant v. Wainwright, 5 Cir., 1972, 468 F.2d 677.

      . As a procedural matter, we followed Justice Brennan’s suggestion in Dickey, supra, that the State be required, because the length of the delay had made out a prima facie case of abuse of the right, to bear the burden of proving that there was no prejudice. See also Murray v. Wainwright, 5 Cir., 1971, 450 F.2d 465, 471. Cf. United States v. Dyson, 5 Cir., 1972, 469 F.2d 735, 741. Obviously, this will still be a desirable approach for cases in which the other factors do not automatically require dismissal without an inquiry into the issue of prejudice.

      . This distinguishes Hoskins’ case from the actual holding of Barker. In Barker, the Supreme Court held that the Sixth Amendment right was not violated, even though there had been a lengthy, unjustified delay, because there was no showing of prejudice and the record clearly established that Barker did not want a speedy trial. The Court left no room for mistake as to which of these two factors it found most persuasive:
      “More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial.”
      407 U.S. at 534, 92 S.Ct. at 2194, 33 L.Ed.2d at 119.
      Hoskins, on the other hand, made a demand for an immediate trial on February 27, 1963, when he first learned of the presence of the detainer warrant. Not until the Supreme Court of Florida had decided Dickey v. Circuit Court, supra, in 1967, however, did his demand get any concrete results — ■ and then only at the behest of his own motion for writ of mandamus.


author: MERRILL, Circuit Judge: DUNIWAY, Circuit Judge

text:
    Charles K. CHAPMAN and Margaret O. Chapman, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 72-3112.
    United States Court of Appeals, Ninth Circuit.
    Oct. 5, 1973.
    Ann Belanger, Atty. (argued), Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C.; William D. Keller, U. S. Atty., Charles N. Magnuson, Mason C. Lewis, Asst. U. S. Attys., Los Angeles, Cal., Meyer T. Rothwacks, Grant Wiprud, Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellant.
    Charles K. Chapman (argued), Long Beach, Cal., for plaintiffs-appellees.
    Before MERRILL and DUNIWAY, Circuit Judges, and BOLDT, District Judge.

       Honorable George H. Boldt, Senior United States District Judge for the Western District of Washington, sitting by designation.

   MERRILL, Circuit Judge:

In the course of litigation having to do with appellees’ income tax liability for the years 1962 — 1964, the District Gourt, 347 F.Supp. 89, entered an order that had the effect of adjudicating in taxpayers’ favor questions of tax liability for the years 1969 and 1971. The issue presented here is whether the court erred in so doing or acted without jurisdiction.

This is the third appeal connected with taxpayers’ tax liability for the years in question. In 1970, upon the disputed issue whether certain sums paid to taxpayers by a savings and loan association were compensation for services rendered or a loan, the District Court ruled in favor of taxpayers and decreed a refund of taxes paid. On appeal, the District Court was affirmed by this court in an unreported decision.

In 1971, pursuant to this court’s decision, the Government refunded to taxpayers the major portion of the judgment awarded but withheld around $14,000 and, in the District Court, sought relief from judgment under Rule 60(b), Federal Rules of Civil Procedure, in order to establish its right, under certain sections of the Internal Revenue Code, to reduce (by the amount withheld) the interest portion of the judgment.

The District Court denied the Government’s motion and on appeal this court affirmed, in an unreported decision, finding no abuse of discretion. The withheld balance of refund was then paid to taxpayers by the Government.

Before the District Court, in opposition to the Government’s motion for relief from judgment, taxpayers had contended that the Government had inflicted losses on them through their being required to pay unowed taxes and sue to get them back. The District Court, in denying the Government’s motion for relief, had entered findings of fact supporting the taxpayers in their contentions respecting the “loss” suffered by them. Following decision in their favor by this court on appeal, the taxpayers sought to establish as a tax deduction the “loss” they had suffered at the hands of the Government. They filed amendments to their 1969 and 1971 returns claiming the loss as a deduction. Instead of cashing the Government checks, they deposited them with the clerk of the court, asking that they be applied upon taxes due under the 1969 and 1971 amended returns, and that the District Court decree such application to be in total satisfaction of taxpayers’ tax liability for 1969 and 1971.

Over objection of the Government that the District Court was without jurisdiction, the court ruled that taxes for 1969 and 1971 were “inextricably combined with the adjudications of 1962, 1963, 1964, 1965 and 1967 taxes.” It ordered the clerk to pay to the Government, out of the amount deposited by the taxpayers, the amount of taxes reported by the taxpayers as due under their 1969 and 1971 returns and to enter “complete satisfaction * * " for all claims and demands of the United States against plaintiffs for income taxes, interest and penalties” for the years 1962 through 1965, 1967, 1969 and 1971.

This appeál was then taken. We reverse.

The jurisdiction of the District Court, under 28 U.S.C. § 1346(a) (1), to act with respect to tax liability is limited to entertaining actions for the recovery of taxes wrongfully assessed and collected. Under 26 U.S.C. § 7422 such action cannot be maintained “until a claim for refund or credit has been duly filed with the Secretary.”

In re Statmaster Corp., 465 F.2d 978 (5th Cir. 1972), is closely in point. There a trustee in bankruptcy sought an adjudication to the effect that should he file a tax return in a particular form the Commissioner would be precluded from assessing a deficiency. It was held that this amounted to a request for declaratory judgment with respect to a tax matter, expressly barred by 28 U.S.C. § 2201. The court stated (465 F.2d at 980):

“This prohibition comports with the statutory scheme which gives the Internal Revenue Service the right to determine possible tax liability in the first instance. * * * In the present case the taxpayer has circumvented this normal procedure. The Internal Revenue Service has been denied participation at the initial level. •X -X X
■x -x x x -x -x
x x x Until the return is filed and passed on by the Commissioner, there can be no controversy with regard to which relief can be granted. Through the caveat to the Declaratory Judgment Act, Congress has clearly indicated that the initial decisions in such cases is for the Commissioner, not the federal courts.”

The District Court appears to have proceeded upon the theory that principles of res judicata serve to establish that the “loss” suffered by taxpayers was a proper deduction from income and that no purpose would be served by insisting that the question of deductibility be first passed upon by the Commissioner. Even accepting (arguendo and dubitante) that in a proper case such a theory could justify departure from the principles on which Statmaster rests, we have doubts that it should apply here.

So far as we can ascertain the only adjudication respecting the taxpayers’ “loss” which the courts can be said to have made was that it was a proper exercise of discretion to take into consideration the extent of the burden already borne by the taxpayers in deciding whether the Government’s tardily advanced motion for relief from judgment should be granted. Certainly no judicial determination could properly be said to have established that any loss suffered by taxpayers was tax deductible.

Reversed and remanded with instructions that the order appealed from be vacated.

DUNIWAY, Circuit Judge

(concurring) :

I concur in Judge Merrill’s opinion but add an observation about jurisdiction with which both of my brothers concur.

The District Court also took the position that, by affirming its 1971 ruling, this court has held that the District Court had jurisdiction to rule upon plaintiffs’ 1969 and 1971 tax liability. However, as Judge Merrill’s opinion points out, the District Court, in its 1971 ruling, did not pass upon the plaintiffs’ 1969 and 1971 tax liability. Thus the District Court’s jurisdiction to do so was not before us when we affirmed on March 15, 1972, and we did not consider it.


author: LAY, Circuit Judge.

text:
    John M. HOPPE, Appellant, v. MIDWEST CONVEYOR COMPANY, INC., Appellee.
    No. 73-1105.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 16, 1973.

      Rex Carr, East St. Louis, Ill., for appellant.
    James J. Amelung, St. Louis, Mo., for appellee.
    Before LAY, ROSS and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

This is a product liability case. John Hoppe brought this action against Midwest Conveyor Co., Inc., for injuries he received on the assembly line of Fisher Body Division, a General Motors automobile plant located in St. Louis, Missouri. The defendant, Midwest Convey- or Co., was the manufacturer of a conveyor-hoist used in the plant. At the close of the plaintiff’s evidence the trial court directed a verdict for the defendant ruling there was insufficient evidence that the machine was defective or dangerous when put to a use reasonably anticipated. Plaintiff appeals. We reverse and remand for a new trial.

The facts may be briefly stated. The conveyor-hoist in question is used to transfer auto underbodies from one assembly line to another. This is accomplished by elongated arms with claws on their ends which are used to clamp onto the underbodies. The evidence shows that the machine has three separate maneuvers, each controlled by different valves. The maneuvers are (1) the up and down operations of the arms, (2) a rotating motion and (3) the operation of the claws. The power for all of the movements is provided by compressed air which flows through the valves. The up and down operation is controlled by a valve known as a Parker-Hannifin solenoid air valve. Each valve is designed so that it can be operated electrically or by a manual control.

The injury took place on August 27, 1970. The conveyor-hoist had been installed on the Fisher Body assembly line approximately two weeks before. On the day in question an electrical wire broke which caused the arms to stall in a down position blocking the assembly line and halting the movement. A maintenance foreman requested Hoppe, a pipefitter, to open the manual control valve, also known as a solenoid valve, on the conveyor-hoist machine, in order that the arms could be raised and the assembly line cleared. The manual control valve was located directly above the arms, some 10 to 12 feet from the floor. To gain access to the valve Hoppe had to crawl over a girder which extended above the machine. Hoppe had no prior experience with the machine and was not familiar with the machine’s movements. Once Hoppe was above the valve he straddled the girder, leaned over the machine, inserted a screwdriver in a slot marked “manual override” and turned the valve. When the valve was turned the air cylinder rod retracted and the plaintiff’s foot was crushed in the moving parts of the machine.

According to the plaintiff’s evidence the “conduit layout of the hoist,” prepared by the defendant, as submitted to and approved by General Motors, shows the location of the solenoid valve in question to be in an accessible position away from the moving parts of the machine. (After the accident the valves were moved to the approximate position shown on the original plan.) However, when the unit arrived at the plant the valve had been placed at the top of the machine. The defendant asserts that Fisher Body was in charge of the installation of the assembled machine and that the electrical schematic diagram shows that some of the parts such as the solenoid valve were to be “field-located” by Fisher Body. Plaintiff’s expert witness, Dr. Gerald Dreifke, testified that the electrical schematic diagram is not designed to show the location of the valves but is to be used by electricians to make the proper connections between the new piece of machinery and the existing electrical wiring within the factory. Dr. Dreifke testified that conduit drawings are often used by the installers in the field to establish the location of parts.

Dr. Dreifke, called by the plaintiff, was an experienced design engineer and opined that the location of the solenoid valve when used as a manual control was unsafe because it was located near moving parts of the machine. On cross-examination he agreed that if the air power had been shut off before Hoppe turned the valve the accident would not have occurred. It was this fact which apparently led the trial court to conclude that the machine was not being used in a manner which could have been reasonably anticipated. The only other evidence concerning the use of the air power was by the Fisher Body maintenance foreman, Earl Rice. He testified that normally the air was not turned off while operating Parker-Hannifin valves since the valves would not operate without pressure on them. There is no evidence that defendant issued any warning or instruction with the machine that the manual override was not to be operated unless the air pressure was turned off.

Plaintiff brought suit on two distinct counts of strict liability and breach of warranty. Missouri recognizes both the doctrine of strict liability, Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969) and breach of warranty, Morrow v. Caloric Appliance Corp., 372 S.W.2d 41 (Mo.1963) (en banc) .

The principle is well established that manufacturers have a duty to use reasonable care in the design of a chattel. Cf. Passwaters v. General Motors Corp., 454 F.2d 1270, 1274 (8th Cir. 1972). Recognition of the doctrine of strict liability now eliminates proof as to violation of the standard of reasonable care. Passwaters, supra at 1277.

Missouri has recognized liability for faulty design. In Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo. App.1970), the plaintiff was killed as the result of a hydraulic lift system on a dump truck manufactured by the defendant. While the plaintiff-decedent was oiling some bearings underneath the bed of the truck he accidently hit a control rod causing the bed of the truck to drop on him. Plaintiff’s expert testified that the lift system was improperly designed since an accidental hitting of the control rod could operate the valves of the lift system, causing the dump body to drop. Significantly, there was no proof of the existence of a defective condition “since the hoist did not disintegrate, break down, crack or fail.” Nevertheless, the Missouri court found a “dangerous condition” to exist because of the design’s failure to include a safety factor. See also Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970) (en banc) (failure of earth-moving machine to be equipped with rear view mirrors with no audible or visible backup warning signal). There the California Supreme Court observed:

“[Tjhere is no rational distinction between design and manufacture in this context, since a product may be equally defective and dangerous if its design subjects protected persons to unreasonable risk as if its manufacture does so.” Pike, supra at 636 of 85 Cal.Rptr., at 236 of 467 P.2d.

See also Wirth v. Clark Equipment Co., 457 F.2d 1262 (9th Cir. 1972) (forward view of driver in van carrier severely restricted because of the way the van was constructed); Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 281 N.E.2d 749 (1972) (design of strip mining machine allowed debris from the adjacent spoil bank to roll beneath the machine).

On review of the overall record we conclude there exists sufficient evidence from which reasonable men might find that the hoist as designed by the defendant created a dangerous condition.

However, the basic reasoning of the trial court was that the plaintiff should be barred from recovery since the hoist was being operated in an unintended manner not foreseeable by the manufacturer. One of the essential elements of proof in a strict liability case is that the plaintiff must show that the machine was being used in a manner which could have been reasonably anticipated. See Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969) and Maryland Casualty Co. v. Dondlinger & Sons Const. Co., 420 F.2d 1368 (8th Cir. 1970).

In Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App.1970) the Missouri court discussed the concept of intended use in terms of foreseeability.

“Defendants then contend that plaintiff failed to make a submissible case because as a matter of law the hoist was being used in a manner for which it was not intended. The Restatement, § 402A, supra, at Comment (h), paraphrased in the light of the facts of this case, requires a product to be safe for normal use; if it is abnormally used and injury results, then the product may not be found to be in a defective condition. Keener, supra, directs this issue to be submitted in language hypothesizing the use of the' article ‘in a manner reasonably anticipated’. The statement to the effect defendants are not liable for injuries resulting from abnormal use is only true if such abnormal use was not reasonably foreseeable. ‘The issue is one of foreseeability, and misuse may be foreseeable.’ Products Liability, Frumer & Friedman, § 15.01. Foreseeable use may be different from its intended use and includes any particular use which should be known to a reasonably prudent manufacturer. Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill.App.2d 315, 229 N.E.2d 684. The evidence that there were a number of duties which a driver had to do as part of normal maintenance and which could only or which could best be performed when the bed of the truck was in a raised position established this element of plaintiff’s case.” Higgins, supra at 948.

Harper and James in discussing intended use observe:

“The maker of an article for sale or use by others must use reasonable care and skill in designing it and providing specifications for it so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable. . . .” (emphasis added).
2 H. Harper & F. James, The Law of Torts, § 28.4 at 1541 (1956).

See also Passwaters v. General Motors Corp., 454 F.2d 1270, 1275-1276 n.5 (8th Cir. 1972); Mazzi v. Greenlee Tool Co., 320 F.2d 821 (2d Cir. 1963).

The intended use doctrine necessarily includes foreseeable consequences of (unintentional) misuse. However, on the record here, there is no affirmative showing that Hoppe was misusing the machine. According to his foreman it was normal usage to operate a manual override solenoid valve with the air still on. This court has no special knowledge gained from this record, or from our own experience, which enables us to conclude as a matter of law that Hoppe was misusing .the machine. Obviously, with hindsight, it is easy to conclude that the accident would not have happened had the air been turned off. However, this is nothing more than “but for” rationalization and hardly rules out that it was reasonably foreseeable, without specific warning to the contrary, that a user of the machine would attempt to operate the machinery by use of the manual override valve when the compressed air was still turned on.

Defendant alternatively urges that the trial judge’s directed verdict should be sustained since Hoppe was contributorily negligent as a matter of law. We hold that he was not. In Williams v. Ford Motor Co., 454 S.W.2d 611 (Mo.App.1970), the court restricted the application of the general rule governing contributory negligence in strict liability and warranty eases. The court observed :

“The foregoing view that contributory negligence is not available as a defense to ‘strict liability in implied warranty’ or to ‘strict liability in tort’ as adopted by Keener v. Dayton Electric Manufacturing Co., supra, is equally founded upon the prior law. As noted strict liability in tort does not rest upon negligence. ‘The term “contributory negligence” necessarily presupposes negligence for which defendant is responsible, which would sustain an action but for the concurrence of the contributory negligence.’ By analogy, contributory negligence is not a defense to willful and wanton negligence. . . . Nor is a defense of contributory negligence available as a defense to actions based on defendants’ intentional conduct. . . . Contributory negligence is not available as a defense to a warranty case.” Williams, supra at 618-619. (emphasis added).

See also Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 365 (Mo.1969). In Higgins v. Paul Hardeman, Inc., 457 S. W.2d 943 (Mo.App.1970), the court explains that a -plaintiff may only be barred from recovery if he unreasonably uses a product after he discovers the defect. The court there observed:

“ ‘If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.’ . . . Regardless of the name of the defense, be it assumption of risk or contributory fault or whatever name the court then considering the matter may assign to it, the gut issue is not whether the defect was discovered but whether the product was unreasonably used after discovery of the defect.” Higgins, supra at 948.

We have no difficulty in resolving that plaintiff has established a prima facie case worthy of jury consideration.

The second issue the plaintiff urges is that the trial court erred in excluding certain testimony of plaintiff’s expert. Since the case has to be retried, we deem it necessary to comment on these rulings. Basically, the plaintiff complains that Dr. Dreifke, the design engineer, was not allowed to testify regarding his opinion and interpretation of the plans prepared by the defendant. The trial court felt that the plans were immaterial and that the only relevant proof related to the condition of the machine as it was installed. Further the trial court excluded proof as to whether the valve could have been feasibly and economically located elsewhere, and testimony as to the location of the valve as set forth in the plans and specifications.

We think the court erred and was unduly restrictive in ruling on the admissibility of Dr. Dreifke’s testimony on this subject matter. See Sutkowski v. Universal Marion Corp., 281 N.E.2d 749 (Ill.App.1972). Cf. Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195 (8th Cir. 1969). An expert witness is called primarily to aid the trier of fact in understanding evidence which is of a highly technical nature. His testimony is appropriate when his unusual knowledge, by reason of skill, experience or education may lend meaningful insights and better comprehension of technical evidence. Here plaintiff’s theory was based on dangerous design of a highly complicated piece of machinery. Liability alleged from defective design encompasses many factors not generally relevant to ordinary negligence in tort cases. The comparative design with similar and competitive machinery in the field, alternate designs and post accident modification of the machine, the frequency or infrequency of use of the same product with or without mishap, and the relative cost and feasibility in adopting other design are all relevant to proof of defective design. Cf. McCormack v. Hankscraft Co., 278 Minn. 322, 154 N.W.2d 488 (1967); Wehrli v. Wabash R. R., 315 S.W.2d 765 (Mo.1958); Brown v. Quick Mix Co., 75 Wash.2d 833, 454 P.2d 205 (1969) (en banc); Noel, Manufacturer’s Negligence of Design or Directions for Use of Product, 71 Yale L. J. 816, 848-853 (1962).

It is apparent from the colloquy of court and counsel that a misunderstanding arose between the trial court and plaintiff’s counsel over plaintiff’s theory of liability arising from improper design. Plaintiff's complaint, at least under federal notice pleading, was sufficient to place both court and opposing counsel on notice of his counts based on warranty and strict liability arising from defective design. Under both counts the plans were admissible and were susceptible of expert explication to aid the jurors’ understanding.

The record is replete with argumentative discussion between counsel and the court, much of it within the presence of the jury during the testimony of Dr. Dreifke. Many of the statements are confusing to this court and we are convinced they would be even more perplexing to a lay jury. We are constrained to say that most if not all of the objections made by counsel and the commentary by the court were unnecessary and time-consuming. A witness, particularly one as experienced and well-trained as Dr. Dreifke, deserves greater courtesy and a less restricted atmosphere to present his testimony than was provided here. Opposing counsel should never attempt to frustrate the ex-animation of a witness by argumentative objections. He always has ample opportunity to cross-examine a witness as to any points of weakness his adversary may have overlooked. Cf. Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195 (8th Cir. 1969). In the orderly administration of justice any witness’s examination should be designed to make the solicited testimony communicative and readily understandable to the trier of fact. This goal is not attained when there is constant interruption of the examination by either the court or opposing counsel. Only when the outer boundaries of relevancy or prejudicial misconduct are approached should a lawyer be restricted in examination of a witness, otherwise the court and both counsel should strive to see interrogation of a witness go unimpeded by needless objection or judicial comment. This does not mean that counsel must waive all objections or a trial judge should not intervene when necessary. Our observations are germane only when the orderly progress of the trial is abused as this court feels it was here.

Defendant raises an alternative ground on which it suggests the trial court should be affirmed. The argument is made that since Fisher Body was a co-plaintiff in the trial court and failed to perfect its appeal that the judgment against Fisher Body is res judicata against the plaintiff Hoppe. This claim is without merit.

Under § 287.150 of the Missouri Revised Statutes, V.A.M.S., the employer is subrogated to the right of the employee against third parties for the amount of workmen’s compensation paid to the employee. Missouri law is clear that an employee or employer may proceed jointly or separately against a negligent third party.

In State ex rel. Royal-McBee Corp. v. Luten, 390 S.W.2d 931, 934 (Mo.App. 1965), the rule is stated:

“Section 287.150 does not take away from the employee his common law right of action against the third party tort-feasor, Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. Regardless of the employer’s rights of subrogation the employee remains a real party in interest and may bring suit for all of his damages.” (emphasis added).

There can be no prejudice to plaintiff Hoppe in Fisher Body’s failing to appeal. It is clear under the circumstances existing here that the employer is simply a formal party, not necessary to the adjudication of any of the issues between the injured employee and the defendant.

Judgment reversed and remanded for new trial.

      . We again encourage trial courts to submit even doubtful questions to the jury. In this way the whole record can be made and the verdict rendered, thereby obviating the need for another trial if a reversal of a judgment notwithstanding the verdict ensues. See Passwaters v. General Motors Corp., 454 F.2d 1270, 1272-1273 (8th Cir. 1972).

      . Although plaintiff has alleged two separate counts, the claim of implied warranty and the count of strict liability are treated alike, at least, in Missouri. See Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969).

      . See Blohm v. Cardwell Manufacturing Co., 380 F.2d 341 (10th Cir. 1967).

      . In Sutkowski v. Universal Marion Corp., 281 N.E.2d 749, 753 (Ill.App.1972), the court observed:
      “In the development of product’s liability principles design alternatives are appropriately considered whether reasonable care is the basis of liability or where liability is predicated upon strict tort liability. ... In both cases it appears that policy considerations are involved which shift the emphasis from the defendant manufacturer’s conduct to the character of the product. Such change in emphasis furnishes additional reasons for permitting evidence of alternative designs in a strict tort liability ease.
      “The possible existence of alternate designs introduces the feature of feasibility since a manufacturer’s product can hardly be faulted if safer alternatives are not feasible. In this connection feasibility includes not only the elements of economy, effectiveness and practicality but also the technological possibilities viewed in the present state of the art. If the feasibility of alternative designs may be shown by the opinions of experts or by the existence of safety devices on other products or in the design thereof we conclude that evidence of a post occurrence change is equally relevant and material in determining that a design alternative is feasible.”
      See also Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028 (7th Cir. 1969).