author: CLARK, Circuit Judge:

text:
    Luther T. ROUSE, as Administrator of the Estate of Jeptha L. Cobb, and Volkswagen Insurance Co., Plaintiffs-Appellees, v. GREYHOUND RENT-A-CAR, INC., et al., Defendants-Appellees-Cross-Appellants, Lakeland Automobile Auction, Inc., et al., Defendants-Appellants.
    No. 73-4007.
    United States Court of Appeals, Fifth Circuit.
    Jan. 13, 1975.
    Rehearing Denied Feb. 13, 1975.

      James W. Smith, Daytona Beach, Fla., for Lakeland Auto.
    Roland A. Sutcliffe, Jr., George T. Eidson, Jr., Orlando, Fla., for Volkswagen Ins. Co.
    Thomas L. Clarke, Jr., Robert L. Trohn, Lakeland, Fla., for Old Republic Ins. Co.
    Before DYER, SIMPSON and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

The narrow question presented by this action for declaratory judgment is which of the insurance carriers must bear the loss for monies paid in settlement of tort claims arising from an automobile accident. Jurisdiction is based upon diversity of citizenship. Based upon an analysis of the particular fact situation existing at the time of the accident, the district court held that both the owner and the bailee of the vehicle at fault must be treated as “joint” owners and, therefore, that the carrier for the owner and the carrier for the bailee were jointly primarily liable for the payment of damages to the injured third parties and should divide the payment in the proportion the applicable policy limit of each bore to the aggregate of the applicable policy limits of both. We reverse.

The plaintiffs are Luther T. Rouse, a Georgia citizen, as Administrator of the Estate of Jeptha L. Cobb, deceased, and Cobb’s insurer, Volkswagen Insurance Company (Volkswagen), a Missouri Corporation. The defendants are Greyhound Rent-A-Car, Inc. (Greyhound), a Florida Corporation, and its insurer, Old Republic Insurance Company (Old Republic), a Pennsylvania Corporation; and Manheim Services Corporation (Manheim), a Delaware Corporation, its subsidiary, Lakeland Automobile Auction, Inc. (Lakeland), a Florida Corporation, and their insurer, St. Paul Fire and Marine Insurance Company (St. Paul), a Minnesota Corporation.

Simply stated this litigation arises from Cobb’s negligent operation of an automobile on the public highways of Volusia County, Florida causing death and injuries to persons not party to this suit. The following facts found by the district court are amply supported by the record. At the time of the collision Cobb was driving a Ford Torino automobile owned by Greyhound and insured under a policy issued to Greyhound by Old Republic. Prior to the date of the accident the Torino had been entrusted to Lake-land, Cobb’s principal, for purposes of sale either at Lakeland’s weekly auction or off the block. The automobile was also insured under the “non-owned automobile” clause in Lakeland’s personal injury liability insurance policy issued by St. Paul. Finally, since Lakeland consented to Cobb’s use of the Torino for personal purposes, Cobb was insured with respect to injuries from the accident under the “non-owned automobile” clause in the policy Volkswagen issued to Ocie Mae Cobb covering Jeptha L. Cobb.

Two of the four state court civil actions arising out of the accident have been settled and the other two remain pending. To effect the settlement, St. Paul, on behalf of Manheim and Lake-land, contributed 75,000 dollars; Old Republic, on behalf of Greyhound, contributed 65,000 dollars; and Greyhound itself contributed 10,000 dollars pursuant to a 10,000 dollar deductible provision in its policy with Old Republic. Volkswagen, on behalf of the Estate of Jeptha L. Cobb, tendered into the registry of the Circuit Court of Volusia County — in which the civil actions were pending and where two pending civil actions are still docketed — the limits of its policy, 100,000 dollars. All of the parties herein have stipulated that the amount of the settler ment was reasonable and that it was made without prejudice to the rights of any of the parties to seek a declaration of their respective rights and liabilities in connection with the accident.

The district court correctly concluded that Cobb, Lakeland, and Greyhound were all subject to damage suit judgments in favor of the injured parties. Cobb was of course liable as the driver for damages proximately resulting from his negligent operation of the vehicle. Lakeland, as bailee of the automobile was also liable because of its consent to Cobb’s operation of the vehicle. Martin v. Lloyd Motor Co., 119 So.2d 413 (Fla.App.1960); Frankel v. Fleming, 69 So.2d 887 (Fla.1954). Greyhound is similarly liable under the Florida dangerous instrumentality doctrine which imposes upon the owner of an automobile vicarious liability to persons injured as a result of the negligence of a person operating the automobile with the owner’s consent. E. g., Engleman v. Traeger, 102 Fla. 756, 136 So. 527 (1931); Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Ray v. Earl, 277 So.2d 73 (Fla.App.1973); Martinez v. Hart, 270 So.2d 438 (Fla.App.1972); Allstate Ins. Co. v. Chastain, 251 So.2d 354 (Fla.App. 1972), cert. denied, 263 So.2d 578 (Fla. 1972); Hertz Corp. v. Hellens, 140 So.2d 73 (Fla.App.1962). “[Wjhen control of such a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse.” Susco Car Rental System v. Leonard, 112 So.2d 832, 835-836 (Fla.1959); accord, Thomas v. Atlantic Associates, Inc., 226 So.2d 100 (Fla.1969); Ivey v. National Fisheries, Inc., 215 So.2d 74 (Fla.App.1968).

The point which Manheim, Lakeland and St. Paul contest is the lower court’s conclusion of law that St. Paul was jointly primarily liable along with Old Republic.

As noted by the district court, Florida case law has established the principle that the insurer of the owner of a vehicle is primarily liable to persons injured as a result of the negligence of a person operating that instrumentality with the owner’s consent. E. g., Roth v. Old Republic Ins. Co., 269 So.2d 3 (Fla. 1972); Ray v. Earl, 277 So.2d 73 (Fla. App.1973). The Roth opinion “is based on the policy of Florida law as developed in the dangerous instrumentality doctrine to require an owner to provide financial responsibility for his motor vehicles operated on the public highways of the state with his ‘consent’.” Rouse v. Greyhound Rent-A-Car, Inc., 369 F.Supp. 1072, 1076 (M.D.Fla.1973). Even where an owner of an automobile has voluntarily entrusted it to another, and this second person subsequently entrusts the vehicle to still another, the third person is also covered by the owner’s policy because of the Financial Responsibility Law and the policy’s conformity therewith. Fla.Stat.Ann. § 324.151(1)(a) (1971). See Roth, supra. In such a case, where a permittee of the bailee acquires possession of the automobile, the owner’s consent to the third party’s use will be implied in cases where no express limitation or negation of consent can be found. See, e. g., Ray v. Ear], and Susco, supra. In fact, this “doctrine of implied consent . . has been used to extend the insurer’s liability in a manner such that it is usually coextensive with the owner’s liability to injured third parties under tort doctrines of dangerous instrumentality and vicarious and imputed negligence.” Ray v. Earl, 277 So.2d 73, 76 (Fla.App.1973).

The district court concluded that since Lakeland enjoyed certain incidents of ownership in the vehicle at fault it should be treated as a joint “owner” with Greyhound, that as owners both were liable under the Florida dangerous instrumentality doctrine, and, therefore, that Old Republic and Lakeland were primarily and jointly liable for the payment of damages. We disagree with the district court’s holding that Lakeland was an “owner” of the vehicle.

Since the primary liability of the owner’s insurer is founded upon the Florida requirement that an owner be financially responsible for use of dangerous instrumentalities such as automobiles, the definition of “owner” adopted by the Financial Responsibility Law governs our determination of Lakeland’s status. Section 324.021(9) of the Florida Statutes defines an “owner” as:

A person who holds the legal title of a motor vehicle or in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor, shall be deemed the owner for the purpose of this chapter.

Clearly, Florida intends for the term “owner” to be synonymous with the terms legal or equitable titleholder. Lakeland was not the holder of title nor was it a conditional vendee, lessee, or mortgagor. Given this definitional policy, Old Republic was and remained solely primarily liable for damages to the injured parties. Therefore, unless its coverage amounts be first exhausted, Old Republic must reimburse Volkswagen for the 100,000 dollars which it paid into the registry of the Circuit Court of Volusia County for settlement of the claims of the injured persons, and reimburse St. Paul for the 75,000 dollars which it contributed to the settlement fund.

Old Republic, while accepting the proposition that the owner’s insurer is primarily liable under the dangerous instrumentality doctrine, argues that the doctrine is not applicable where the bailee and his permittee are not “insureds” under the owner’s policy. See Ray v. Earl, supra, at p. 75. Old Republic contends that Lakeland and Cobb are not included as insureds in its policy with Greyhound since Lakeland and Cobb fall within the “automobile sales agency exclusion” contained in the omnibus clause of the policy. Old Republic relies on the Florida Second District Court of Appeals’ decision in Schaffer v. Government Employees Ins. Co., 280 So.2d 504 (1973), cert. denied, 285 So.2d 23 (Fla.1973), in which the court held that where a bailor entrusts his automobile to a bailee who is engaged in the automobile business, the bailor is not liable for damages resulting from his bailee’s negligence in allowing a third person to drive the bailor’s automobile. On this authority, Old Republic asserts that Lakeland and Cobb are excluded from coverage under its policy. Such reliance is unfounded since bailment to an automobile agency only satisfies the first prong of the two-pronged test enunciated in the exclusionary provision. Not only must Lakeland and Cobb be operating an automobile business, but, secondly the accident must “aris[e] out of the operation thereof.”

In Schaffer, the accident occurred while the third person was driving the car into bailee’s garage for repairs. Such facts clearly evince an incident arising out of the automobile business. Under the facts before us, however, Cobb was enjoying the use of the automobile for personal reasons at the time of the accident. Employing the basic rules of construction adopted by the Florida courts: (1) that the language used in an insurance policy is to be given its popular and usual significance, unless the context requires a different conclusion, Rosen v. Godson, 422 F.2d 1082 (5th Cir. 1970); Continental Casualty Co. v. Brothwick, 177 So.2d 687 (Fla.App.1965); Aetna Casualty & Surety Co. v. Cartmel, 87 Fla. 495, 100 So.2d 802, 35 A.L.R. 1013 (1924); and (2) that the provisions of a policy of insurance which tend to limit or avoid liability should be construed in favor of the insured and strictly against the insurer. National Automobile Ins. Ass’n v. Brumit, 98 So.2d 330, 332 (Fla. 1957), we conclude that Cobb’s accident did not arise out of the operation of Lakeland’s automobile business and therefore that the exclusion is inapplicable. The Supreme Court of Louisiana, in McConnell v. Travelers Indemnity Co., 248 La. 509, 180 So.2d 406 (1965), being called upon to interpret an automobile business exclusionary clause containing the same wording as the clause before us, similarly held that the accident did not arise out of the operation of the repair shop where the accident occurred while the repairman was using the automobile for a personal mission during nonworking hours.

The imposition of primary liability upon Old Republic also works to properly distribute the loss according to risks accepted and premiums charged by the three carriers. These considerations dictate that the loss should fall primarily upon the carrier whose premium has been knowledgeably calculated to offset the principal exposure and only secondarily upon carriers, such as St. Paul' and Volkswagen, who are receiving a nominal premium for coverage of a type of risk which is episodic and relatively incidental. See Hawkes, Liability Guiding Principles, 1960 Insurance L.J., No. 451 at 481; and Federal Ins. Co. v. Prestemon, 278 Minn. 218, 153 N.W.2d 429 (1967); see also Judge Tate’s concurring opinion in State Farm Mutual Automobile Ins. Co. v. Travelers Ins. Co., 184 So.2d 750 (La.App.1966). Because the owner’s use may be expected to be the primary and pervasive use, the carrier insuring the owner of a vehicle also has the best opportunity to secure adequate risk experience data to determine a reasonable premium to cover the hazard.

Having concluded that Old Republic is primarily liable, we turn our attention to a consideration of the apportionment of secondary liability between St. Paul and Volkswagen. The policies of both of these carriers contain “other insurance” clauses whereby the insurers attempt to limit their liability where an insured is covered by two or more policies. Both clauses contain “excess” provisions, i. e., they purport to subject the carrier to liability only for amounts awarded above the total amount recoverable under all other applicable policies. Thus the clauses are mutually repugnant, since if both are given effect neither insurer would be liable. “Certainly, it was not the intent of the parties to provide that a second policy should extinguish the liability of both. Therefore, -the two clauses cannot survive.” Continental Casualty Co. v. St. Paul Mercury Fire & Marine Ins. Co., 163 F.Supp. 325, 326 (S.D.Fla.1958); accord, Consolidated Systems, Inc. v. Allstate Ins. Co., 411 F.2d 157 (5th Cir. 1969) (applying Florida law); Factory Mutual Liability Ins. Co. v. Continental Casualty Co., 267 F.2d 818 (5th Cir. 1959) (applying Florida law); Atlantic Nat’l Ins. Co. v. Erie Ins. Exchange, 211 F.Supp. 878 (S.D.Fla.1962). This court, in Motor Vehicle Casualty Co. v. Atlantic Nat’l Ins. Co., 374 F.2d 601 (5th Cir. 1967), employing an Erie interpretation of Florida law, held that where two insurance policies both contained “excess” other insurance clauses, then proration was proper. Following Motor Vehicle Casualty Company, we conclude that St. Paul and Volkswagen are liable pro-rata in the respective proportion which the amount of each policy bears to the combined total amount of both policies for any recovery beyond the liability limits of the Old Republic policy. See 8 Appleman, Insurance Law and Practice § 4913 (1962).

Reversed.

      . Florida Statutes 324.151 — Motor vehicle liability policies; required provisions
      (1) A motor vehicle liability policy to be proof of financial responsibility under § 324.031(1), shall be issued to owners or operators under the following provisions; (a) An owner’s liability insurance policy shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby granted and shall insure the owner named therein and any other person as operator using such motor vehicle or motor vehicles with the express or implied permission of such owner, against loss from the liability imposed by law for damage arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles, within the United States or the Dominion of Canada, subject to limits, exclusive of interest and costs with respect to each such motor vehicle as is provided for under § 324.021(7).

      . Old Republic’s automobile sales agency exclusion states,
      The insurance with respect to any person or organization other than the named insured or such spouse does not apply (1) to any person or organization, or to any agent or employee thereof operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any action arising out of the operation thereof .

      . The term “arising out of” is ordinarily understood to mean originating from, incident to, or connected with the item in question. See Red Ball Motor Freight Ins. v. Employers Mutual Liability Ins. Co., 189 F.2d 374 (5th Cir. 1951); Employers Mutual Casualty Co. v. Federated Mutual Implement & Hardware Ins. Co., 213 F.2d 421 (8th Cir. 1954).

      . St. Paul’s policy provides: “Other Insurance — No Insuring Agreement hereof shall apply to any loss if the Insured is, or would be but for the existence of such Insuring Agreement, insured against such loss under any other policy or policies, bond or bonds, except as respects any excess beyond the amount which would have been payable under any other policy or policies, bond or bonds, had such Insuring Agreement not been effective.”
      Volkswagen’s policy provides, Other Insurance: “ . . . the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.”


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dinklus CLARK, Jr., and James Leon Baldwin, Defendants-Appellants.
    No. 74-2082
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 13, 1975.

      Ural B. Adams, Jr., Memphis, Tenn. (Court-appointed), for Clark.
    Robert G. Gilder, Southaven, Miss. (Court-appointed), for Baldwin.
    H. M. Ray, U. S. Atty., Oxford, Miss., Alfred Morton, III, Asst. U. S. Atty., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.

   AINSWORTH, Circuit Judge:

Appellants were charged with the armed robbery of the Bank of Walls in DeSoto County, Mississippi, on October 19, 1973, in which $57,497 was taken from the bank. Clark and Baldwin were each convicted after a jury trial on one count of violating 18 U.S.C. § 2113(d), pertaining to bank robbery and putting in jeopardy the life of any person by the use of a dangerous weapon in connection therewith. Clark was sentenced as a youth offender for a period of up to twelve years under 18 U.S.C. §§ 5017(c) and (d), provisions of the Youth Corrections Act. Baldwin was sentenced to sixteen years’ imprisonment. Finding no reversible error, we affirm both convictions.

During the course of the trial, bank employees and customers gave differing descriptions of the robbers. While all agreed that a shotgun and a pistol were used in the course of the robbery, there was varied testimony as to which robber had what weapon. Other eyewitness identification differed as to certain details. One witness, Mr. David Zweig, testified that he saw Clark and another defendant, Wyatt, in his service station the day after the robbery, and that they paid for a $378.20 repair bill in cash. Subsequent to the trial, and after Wyatt had been convicted with Clark and Baldwin, Zweig stated in an affidavit that he felt he had mistakenly identified Wyatt. Wyatt’s motion for a new trial was granted, and his indictment was subsequently dismissed. Also brought out at trial was the fact that Clark and Baldwin had escaped from custody while awaiting trial on the bank robbery charge. Both appellants raise issues contesting the validity of the eyewitness identification, the use of the evidence of escape, and the court’s denial of various requested instructions.

CLARK’S CLAIMS OF ERROR

During selection of the jury, the defendants asked for additional peremptory challenges. The court granted two additional peremptories to both the defendants and the Government. Clark alleges this to be error, pointing out that Fed.R.Crim.P. 24(b) allows for additional challenges only to defendants. Other courts have held that absent a showing of prejudice or making a specific objection predicated on Rule 24(b), such claims will not be recognized on appeal. See United States v. Potts, 4 Cir., 1970, 420 F.2d 964, 964—965, cert. denied, 398 U.S. 941, 90 S.Ct. 1855, 26 L.Ed.2d 276 (injury to appellant not shown); United States v. Projansky, 2 Cir., 1972, 465 F.2d 123, 140—141, cert. denied, 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (prejudice not shown; no specific objection predicated on Rule 24(b) presented to district court). We need not decide whether the holdings of such cases are applicable, and we do not decide whether there is prejudice inherent in allowing the Government additional peremptory challenges, for the Government used but six peremptories in the jury selection process. Because the Government used only the number of challenges to which Rule 24 entitled it, we are presented with an academic issue and one which we need not decide under the facts of this case.

Clark next claims that evidence of his escape from jail was improperly admitted against him. This is without merit, in that we have upheld the admissibility of evidence of flight. United States v. Ballard, 5 Cir., 1970, 423 F.2d 127, 133. The court gave an acceptable charge on the issue, see 1 Devitt and Blackmar, Federal Jury Practice and Instructions § 11.18 (2d ed. 1970), and added, at Clark’s request, the following: “In considering any evidence of flight or concealment, the jury should consider the motive which prompted it.” Citing Austin v. United States, 1969, 134 U.S.App.D.C. 259, 414 F.2d 1155, Clark argues that the court was obligated to fashion an even more extended charge. But the court gave Clark’s proposed addition to the charge, and even Austin does not require elaboration on the charge in the absence of a specific request to the court. We find no error in the charge.

The next claim of error relates to the admission of David Zweig’s identification of Clark as one of the men who appeared in his service station the day after the robbery and paid for a large repair bill with cash. Clark asserts that Zweig’s testimony was impermissibly tainted by the fact that Zweig briefly observed Clark in handcuffs during a recess. The court fully considered this issue out of the presence of the jury and then overruled defense objections to Zweig’s testimony. The trial court, then, specifically addressed the contention and found no necessity to exelude Zweig’s testimony. Further, defense counsel were allowed to thoroughly cross-examine Zweig about the incident. Thus we find no reversible error on this point. See United States v. Davis, 5 Cir., 1973, 487 F.2d 112, 122, cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974). Additionally, we note that when Zweig withdrew his testimony identifying Wyatt, he stated he had “no doubt” about his identification of Clark as one of the parties in his station the day after the robbery. We also find no error in the court’s refusal to give defendant’s requested instructions on identification since the court’s instructions on this subject conformed generally to those approved in United States v. Banks, 5 Cir., 1973, 485 F.2d 545, cert. denied, 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974),. and 1 Devitt and Blackmar, Federal Jury Practice and Instructions § 11.32 (2d ed. 1970).

Finally, Clark complains about the trial court’s instructions regarding circumstantial evidence. Clark’s requested instructions suggested that the jury was under a duty to be suspicious of circumstantial evidence, and implied that a higher level of proof was required where circumstantial, rather than direct evidence, was involved. The court’s instructions read, in part:

The law makes no distinction between the weight to be given .either direct or circumstantial evidence. But the law requires that the jury, after weighing all of the evidence, whether direct or circumstantial, must be convinced of the guilt of the defendant beyond a reasonable doubt before he can be convicted.

The court’s instructions were correct interpretations of the law. Once a correct instruction on reasonable doubt was given, the amplification of the charge to discuss circumstantial evidence was within the discretion of the court. United States v. Bayer, 331 U.S. 532, 536, 67 S.Ct. 1394, 1396, 91 L.Ed. 1654 (1947). An additional instruction on circumstantial evidence may have been “confusing and incorrect.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).

BALDWIN’S CLAIMS OF ERROR

One of Baldwin’s two assertions on appeal is that the trial court erred in not giving Baldwin’s requested jury instruction concerning a defendant’s presumption of innocence. Baldwin concedes that what he requested was an elaboration on the court’s standard instruction. The differences between the requested and the given instructions seem to us to be more apparent than real. In any case, it is not erroneous for a court to decline to elaborate on a correct instruction.

Baldwin’s second contention relates to the admissibility of evidence of escape from jail which was introduced at trial and used against both Clark and Baldwin. After trial in the present case, Baldwin was acquitted of the escape charge, it appearing from the evidence that Baldwin was forced to accompany the other three escapees so he would not be able to sound an alarm. Baldwin argues from cases such as Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), that reference to a charge of which he was innocent in order to support an allegation of guilt deprived him of due process. We have concluded that, on the facts of this case, reversal is not required.

Baldwin’s references to the holdings in cases which prohibit using a constitutionally void conviction to impeach a party or to enhance a jail sentence are not in point. Initially, such cases involve the introduction of criminal convictions; only the fact of an occurrence was introduced at the trial below. Moreover, when prior convictions are introduced, they stand as conclusive evidence that the party is guilty of the crimes charged. When evidence of flight is introduced, however, there are no such connotations of certitude or res judicata. Indeed, the instruction on flight given by the court contained the following comment:

Whether or not evidence of flight or concealment shows a consciousness of guilt and the significance to be attached to any such evidence of that type are exclusively within your province as the jury. In considering any evidence of flight or concealment, the jury should consider the motive which prompted it.

Finally, we would note that the fact of Baldwin’s acquittal does not mandate ignoring that which actually occurred. The fact remains that Baldwin did depart prison illegally, that he did not turn himself in voluntarily after his cohorts made good their escape, and that he did not return to prison until recaptured by the authorities. Further, any prejudice which may have been suffered by Baldwin does not require reversal in light of the strong case against him; Baldwin was linked to the crime by an eyewitness who testified that Baldwin was the driver of the get-away van, and by evidence that three days after the robbery, Baldwin purchased a 1974 Cadillac, paying the $7,386.16 purchase price in cash. Thus, on this record, we cannot say that reversible error was committed in allowing evidence of Baldwin’s flight from jail to be brought before the jury.

Affirmed.


author: COLEMAN, Circuit Judge.

text:
    Mrs. Ivy L. GORDON, Plaintiff-Appellee, v. NIAGARA MACHINE & TOOL WORKS, Defendant-Appellant.
    No. 74-2319.
    United States Court of Appeals, Fifth Circuit.
    Jan. 13, 1974.

      Allan D. Shackelford, Clarksdale, Miss., for defendant-appellant.
    Charles C. Finch, Batesville, Miss., Henry Woods, Little Rock, Ark., D. Briggs Smith, Jr., Batesville, Miss., for plaintiff-appellee.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   COLEMAN, Circuit Judge.

This diversity action for damages for personal injury was brought by Mrs. Ivy Gordon, a Mississippi citizen, against Niagara Machine and Tool Works, a New York Corporation. On February 9, 1969, four fingers were severed from Mrs. Gordon’s left hand when the jaws of a power press manufactured by Niagara unexpectedly came together while she was operating the machine. After a Bench trial, there was judgment for the plaintiff on the theory that Niagara had breached its duty to warn Mrs. Gordon of the dangerous nature of the machine and that this omission was a proximate cause of the injury. Damages were assessed in the sum of $73,470.55.

The District Judge specifically declined to decide the case as one of strict liability in tort. He would not apply Section 402(a) of the Restatement. He decided it altogether as “negligent failure to warn”, Section 388 of the Restatement of Torts.

We reverse and remand for further proceedings not inconsistent herewith.

FACTS

The power press, a giant machine standing ten feet high and capable of exerting sixty tons of pressure, was manufactured by Niagara and delivered to Poloron, a New York Corporation on October 12, 1954. Five years later, Poloron shipped the machine to its Batesville, Mississippi plant, where Mrs. Gordon eventually became employed.

The primary function of the machine is simple. The moving upper jaw is designed to come down upon the stationary lower jaw. The upper jaw can be set to operate either continuously or, as was true in this case, upon the manual command of an individual operator.

When the machine was delivered in 1954 the manual command device was a foot treadle, installed by Niagara. Poloron later replaced the foot treadle with a palm button system. This push button system used air pressure to activate the press. The system was supposedly safer than the foot treadle because it had to be operated by the use of both hands, thereby presumably assuring that an operator could not activate the machine while either hand was inside it. This particular press button system, installed by Poloron, was manufactured by Schreder Corporation. Niagara manufactured similar palm button systems, however, and knew that they were used by many press owners.

As delivered to Poloron, the machine’s jaws did not themselves close together, one upon the other. The machine became “operational”, and thus potentially dangerous to users, only after the installation of dies within the jaws.

Since the machine could be used for many diverse functions, depending upon the type die used, the installation of dies and guards was left to the purchaser.

When it delivered the press to Poloron, Niagara sent along a pamphlet warning, which read as follows:

“Never place your hands under the slides or between the die unless the power is off and the slides blocked up.”

Poloron did not pass this warning on to its employees.

Niagara did not place a warning directly on the machine. It relied on the notice given Poloron.

From and after 1954 Niagara had no further contact with the press. It had nothing to do with the type of work to which the machine was assigned, nor with the installation of any dies or guards necessitated by the work. For fifteen years Niagara had heard nothing further from the machine, while Poloron used it in New York and Mississippi.

Mrs. Gordon had four months experience in Poloron’s Batesville, Mississippi plant. So far as this record shows, Poloron had never given her any warning that the machine might malfunction. She had been running it for two weeks. On the morning of the injury she was using the machine to trim the sides of an ice chest liner. As she removed a piece of cut material from the machine, the upper jaw unexpectedly closed on four fingers. She had not pressed the two palm buttons, which was ordinarily required to make the upper jaw of the press descend upon the lower jaw.

A fair appraisal of the evidence clearly indicates that nobody knew then, or knows now, what caused the machine to malfunction.

The expert witnesses for the plaintiff said that the most likely cause for the malfunction was clutch failure. This opinion, however, was based on the possibility that dirt or other foreign matter could have invaded the clutch. A thorough inspection of the machine immediately after the accident revealed no such intrusion. Thus, the hypotheses of these witnesses are seriously open to the objection that they are without a basis in fact.

Defendant’s experts said that the most likely cause of the malfunction was failure of the Poloron installed palm activation device. This testimony was based on certain idiosyncracies noted in the air pressure operation of the device.

THE LAW

The judgment for the plaintiff was expressly grounded on the Restatement of Torts, Second, Section 388:

“§ 388. Chattel Known to be Dangerous for Intended Use
“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
“(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
“(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

The Mississippi Supreme Court has never expressly approved or adopted this particular portion of the Restatement. There can be little doubt, however, that upon the presentation of an appropriate case it would do so. For example, in State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss., 1966) the Court adopted Section 402(a) of the Restatement. It overruled the previously existing Mississippi case law on the subject.

The District Court found that Niagara knew that its machine was likely to be dangerous when used in a secondary operation for manual feeding; that whatever the reason for a repeat action of the press, when on a single-stroke cycle, serious injury would befall an operator whose hands were within the danger zone; and the machine when operated manually and set on single-stroke cycle could not be completely “fail safe” and accident free.

This satisfied the requirements of Section 388 of the Restatement from the beginning through paragraph (a). It cannot be denominated as clearly erroneous because the written warning given Poloron upon delivery of the press would permit a reasonable inference that Niagara knew the nature of its press.

The Court further found that this was a danger which a machine operator like Mrs. Gordon would have no reason to know of or be aware of because of a reliance upon the belief that the machine would stop always after one cycle and could be fed manually. It was not an obvious danger, it was a latent, hidden and unknowable danger to one untrained in the mechanical operation and understanding of this power press.

As to what Mrs. Gordon did not know and could not, in the exercise of her own resources, have known, this finding is supported by the record, and, in the event of liability, negates a reduction of the recovery for contributory negligence.

The Court further held, however, that this satisfied the second prerequisite of Section 388, that is, of Section 388(b). This sub-section imposes liability only if Niagara had “no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition”. In other words, for recovery against Niagara it would have to be shown by a preponderance of the evidence and inferences reasonably to be drawn therefrom that in 1954 Niagara had “no reason to believe that those for whose use the press was supplied would realize its dangerous condition”. The District Court made no explicit finding on this point but appears to have considered that this requirement was met by Mrs. Gordon’s individual lack of knowledge in 1969, or her inability to learn of it solely by her own resources. This, we think, was not enough to have met the standard prescribed by Section 388(b).

The Comment on Section 388(b) (Page 306) states that the supplier’s duty to warn exists “if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved”.

There is evidence in the record from which it could be inferred that Niagara had reason to expect that from warnings by the employer the ultimate user of the machine would discover the danger of double tripping. There is no evidence, that we can find, addressed to the point that the manufacturer had no reason for such an expectation. We are of the opinion that there should be a new trial on this issue, in which the parties may fully develop the record and the trial court may make specific findings.

The Court further found that Niagara failed to exercise reasonable care under the circumstances to bring home to press operators, whomever they might be, notice of the dangerous latent condition and to warn them, in clear and positive terms, against the hazards of hands and arms coming in contact with the danger zone of the dies between cycle operations. Although Niagara did give certain warnings to Poloron, its customer, it failed to attach any plate, label or other device giving effective warning on the machine itself that would bring home to any user the great danger in the manual operation.

This finding is not clearly erroneous but it covers a point, Section 388(c), which cannot be reached until after one has successfully negotiated his way past Section 388(b).

The Court concluded as follows:

“As the trier of facts, I find that due to the hazards and the severe bodily injury likely to result, the ease with which a label or plate could be put on the machine, the fact that it would be no burden whatever, the fact that it would be the only way to bring home to an operator this danger, insofar as Niagara was concerned, all of those facts, in my judgment, would require Niagara, in the exercise of ordinary care, to have such a plate, device or other warning physically attached to this machine.”

This conclusion would be eminently correct if the Section 388(b) hurdle had been successfully negotiated and if it were further found that the negligence of Poloron to warn its employees was not the sole proximate cause of Mrs. Gordon’s injuries.

PROXIMATE CAUSE

We now discuss the issue of proximate cause.

Both appellant and appellee have extensively argued the application of two Mississippi cases. Niagara argues that it is exonerated by E. I. Du Pont de Nemours & Company v. Ladner, 221 Miss. 378, 73 So.2d 249 (1954).

Specifically, Niagara says that it had no duty to warn the operators of the press but if such a duty did exist then the negligence of Poloron in failing to warn its employees was an intervening cause of the injury which absolved the defendant of any duty which it otherwise might have had.

Du Pont, a chemical compound manufacturer, sold trichloroethylene to a soybean processor, „ Magnolia Corporation. Learning that the chemical was unsafe, Du Pont warned Magnolia not to sell soybean meal containing it. Magnolia disregarded the warning and sold meal to a retailer who, in turn, sold it to plaintiff, whose cattle died from the chemical mixed in the feed. The Mississippi Supreme Court held that a failure to warn could be the basis of liability but further held that the warning given to the buyer of the chemical was the only warning required. This was so because the independent intervention of the feed manufacturer in mixing the chemical in violation of the warning was the sole proximate cause of the loss. As to this, there was no room for reasonable men to differ; if the forbidden mixing had not occurred the loss could not have happened. Therefore, the conduct of Magnolia was the sole proximate cause of the loss; it could not be attributed to Du Pont. This, we think, enunciates a fundamental principle of proximate cause in negligence cases.

The plaintiff, in turn, relies upon a recent case grounded not on negligence but on strict liability in tort, Ford Motor Company v. Matthews, 291 So.2d 169 (Miss., 1974). Ford Motor Company sold a retailer a tractor. Some months later Ford warned the retailer that the tractor had a defect in the safety switch. When the tractor was sold to a customer the warning was not repeated. After the retailers reacquired the tractor, they resold it, again neglecting to repair the defect or to communicate the warning it had received. Because of the defective switch, the tractor started while in gear, ran over Matthews, dragged a disc over him, and killed him. Recovery was allowed against Ford Motor Company, notwithstanding the fact that Ford had warned its buyer of the defect and the buyer had not repeated the warning.

In this products liability case, the Mississippi Supreme Court held, per Presiding Justice Rodgers, that “defective” means that a product does not meet the reasonable expectations of an ordinary consumer as to its safety. It was further held that one who sells a defective product, unreasonably dangerous to the user or consumer, is subject to liability for the harm thereby caused to such user or consumer, if the seller is engaged in the business of selling such product and the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold, even if the seller has exercised all possible care in preparation and sale of the product, and even though the user or consumer did not buy the product from or have any contractual relationship with the seller.

The tractor, four years old, had sustained serious damage in a fire prior to the sale, but since the switch had not been damaged in that fire the jury was not precluded from finding, insofar as the safety switch system was concerned, that it had reached the buyer in substantially the same condition as when it left the factory.

The Court concluded:

“The question of liability in this case is largely a factual issue, and we hold that there is substantial evidence on which the judge could base his decision holding Ford strictly liable in tort for the injury to the deceased Ernest Matthews.” 291 So.2d at page 177.

The jury question here was whether the defective switch system had remained substantially unchanged through the fire. If it had, there was strict liability in tort because it had been defective from the beginning. Both cases were decided in the light of their particular facts. In one there could be no doubt of the proximate cause. In the other a jury question was presented. We see no legal inconsistency in these cases.

We also indicate our familiarity with the proximate cause issue decided by the Supreme Court in State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss., 1966), a products liability case. A plumber failed to follow the manufacturer’s instructions for the installation of a water heater, which resulted in the explosion of the heater and damages to the plaintiff’s home. The trial court awarded a judgment against the manufacturer. By a divided vote, the Supreme Court reversed, holding as a matter of law that the plumber’s failure to follow instructions was the sole proximate cause of the loss.

With the foregoing discussion we now approach the issue of proximate cause in this case. On this subject the District Court held as follows:

“As the trier of fact, the Court holds that the negligence of Niagara in not providing an adequate warning was a continuing one and combined with the negligence of Poloron in its failure to install adequate safety devices and in its failure to itself give warning to this plaintiff, and the possible negligence, if any, on the part of Schrader. That all of these were efficient and effective causes that resulted proximately in the occurrence of this accident suffered by the plaintiff.
“In this case, the negligence of Poloron and of other parties was foreseeable by Niagara at the time of its sale and delivery of this machine. It is fair to charge it with knowledge that there would be haphazard methods employed by industrial customers. Not everything would be done that should be done.
“Now, in that state of the record, I hold that there was no independent intervening cause that destroyed causation between the negligence of Niagara and the occurrence of this accident, and that the rule of intervening efficient cause laid down by the Mississippi Supreme Court in E. I. duPont deNemours and Company v. Ladner, [221 Miss. 378] 73 So.2d 249, is clearly distinguishable, for in that case duPont, having sold this chemical material to Magnolia, later notified them that they did not have enough information for them to use it in the mixture of cattle feed, but notwithstanding that information, Magnolia, the manufacturer of the cattle feed, proceeded to go on and sell the material to plaintiff for cattle feeding purposes. Plaintiff’s cattle died. In that case, the State Supreme Court held that Magnolia’s conscious act in refusing to heed the warning and in selling the carload of tri-extracted soybean meal to Thigpen for cattle feeding purposes, after being apprised of the potential dangers constituted an independent efficient intervening cause which was not foreseeable by duPont.
“The duPont case is clearly distinguishable from the case at bar, because in this record the failures and derelictions of Poloron and anyone else were matters wholly within the range of contemplation by Niagara, and clearly it could not insulate its obligation through their acts of negligence, whatever they might be, insofar as exonerating Niagara of its basic duty to give, in an unequivocal way, an effective warning to whoever might operate the press machine. In Mississippi, the cases are legion to the effect that where the occurrence of the intervening cause might reasonably have been anticipated, the intervening cause will not interrupt connection between original cause and injury. Ross v. Louisville-Nashville Railroad Company, [178 Miss. 69] 172 So. 752; Brewer v. Town of Lucedale, [189 Miss. 374] 198 So. 42; Oliver Bus Lines v. Skaggs, [174 Miss. 201] 164 So. 9, and other cases. So the defense of independent intervening cause cannot be accepted and is without merit.”

Upon the retrial of this case the issue of proximate cause will not be reached if the evidence fails to meet the prescription imposed by Section 388(b). If that requirement is met the trial court should carefully re-examine the proximate cause problem. In the present posture of the case we are unwilling to decide it as a matter of law, but we are equally unwilling to affirm on that point. Since there is, in any event, to be a new trial we need not do either. As a matter of judicial economy, however, we offer a few observations on the subject.

In Mississippi it is undoubtedly the law that an employer has the absolute duty to furnish its employees with reasonably safe and sufficient appliances with which to work, to warn inexperienced employees of dangers of which they are ignorant, and to enforce rules so as to render dangerous work as safe as reasonably possible, Holliday v. Fulton Band Mill, Inc., 5 Cir., 1944, 142 F.2d 1006; Dobbins v. Lookout Oil & Refining Company, 133 Miss. 248, 97 So. 546 (1923). Poloron’s pecuniary liability for ignoring these requirements is limited by the Workmen’s Compensation statutes, but that does not eliminate the duty.

Prior to this highly regrettable injury, Poloron had this press in its exclusive dominion and control for about fifteen years. For several years prior to the injury other presses had, on occasion, malfunctioned in the Poloron plant, resulting in serious personal injuries. Although the point was not very adequately developed from the testimony of those best able to know the facts, the record before us shows that Poloron had never instructed or warned Mrs. Gordon or the other employees. This makes it extremely difficult to say, either as a matter of fact or law, that Poloron’s habitual neglect of its nondelegable duty to warn and instruct had not totally swallowed up the original negligence, if any, of Niagara.

Upon the teachings of the Mississippi Supreme Court in Du Pont, Ford Motor Company, and State Stove, discussed supra, there is a strong likelihood that if that Court had this case before it, it would hold that Niagara’s duty to warn was entirely superseded by Poloron’s total neglect of its mandatory duty. If Poloron had given the required warnings, what more could Niagara’s inanimate warning plate have accomplished?

We leave this to the further consideration of the Court in the light of all the facts as developed at the new trial.

If there is liability, appellant’s assignment of error as to the excessiveness of damages awarded is without merit.

The judgment is reversed, and since this case was tried to the Court without the intervention of a jury the case is remanded for a new trial on the issues indicated.

Reversed and remanded.

      . At Page 580 of the Appendix, the sales manager of Niagara Machine & Tool Works, who had a B.S. degree in mechanical engineering and who had been employed by Niagara since 1952 testified as to the nature of the press when delivered to Poloron.
      “As you call it ‘naked press,’ I call it a press without a die in it. The problem, guarding is a very sacred part of the press industry. And the press builder, when he sells a multi-purpose press, such as an OBI, as we have in this case here, he has no way of knowing how that particular machine — or what tooling is going to go into the machine. In other words, a press of this type can be fed from the front, it can be fed from the back, it can be fed from the left, it can be fed from the right; you can do pointing work, you can do embossing work, you can do trimming work, you can do punching work, you can do forming work and on and on. In other words, the number of jobs that can be performed in this particular press are just unlimited, within the capacity of the machine, of course, 60 tons. Due to the fact that there are so many different kinds of jobs and each job requires a different kind of tooling, there is no one guard that the manufacturer can put on the press that would suffice all the different kinds of operations that may go into that machine. So, consequently, the standard of the industry in 1954, as well as today, was not to provide guarding for a general purpose machine.”


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles SPINELLA, Frank Leslie Merritt and Jerry Buchanan, Defendants-Appellants.
    No. 73-3904.
    United States Court of Appeals, Fifth Circuit.
    Jan. 13, 1975.

      Richard R. Booth, Miami, Fla., for Spinella.
    Angelo A. Ali, Miami, Fla., for Merritt.
    Aram P. Goshgarian, Miami Beach, Fla., for Merritt and Buchanan.
    Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   WISDOM, Circuit Judge:

The defendants-appellants, Frank Merritt, Jerry Buchanan, and Charles Spinella, with one other, John Lettieri, were convicted of receiving and transporting stolen vehicles in interstate commerce, in violation of 18 U.S.C. §§ 2312 and 2313, and of conspiring to commit those offenses, in violation of 18 U.S.C. § 371. Lettieri did not join in this appeal. Buchanan and Merritt raise two contentions. First, they assert that the trial court violated their Sixth Amendment right to an impartial jury by refusing to grant a mistrial when it was discovered that two jurors had received threatening telephone calls during the course of the trial. Second, they assert that the trial court abused its discretion and denied them a fair trial in that it did not grant Lettieri’s motion for severance of defendants and for separate trials. Lettieri’s objective was to introduce exculpatory testimony of Buchanan. Spinella also raises two issues on appeal. First, he contends that the double jeopardy clause prohibits a trial court once it has granted a motion for a new trial and the second trial has commenced before a jury, from aborting the second trial without the consent of the defendant, vacating the order granting a new trial, and reinstating the guilty verdict rendered in the earlier trial. Second, he contends that the trial court abused its discretion in denying his motion for severance filed between the first and second trials.

We affirm the judgment against Merritt and Buchanan; we vacate the judgment against Spinella.

I.

Mrs. Pushferran, one of the jurors, described the telephone call she received one evening during the course of the trial as follows:

It was a little after nine o’clock or maybe nine o’clock. The phone rang, I picked it up and answered and said, “Hello.” Someone on the other line, a man, a gentleman, said, “Miss Pushferran?” I said, “Yes.” He said, “Mrs. Pushferran?” I said, “Yes.” He said, “I am going to tell you this one time only and you better listen.” He said, “It is about your husband,” and I hung up because I got nervous and I just hung up.

Mr. Buckhalter, another juror, described a similar telephone call:

So, I picked up the phone. I said, “Hello,” and there was a man’s voice on the phone that said, “Mr. Buckhalter?” I said, “Yes, sir.” He said, “You know why I’m calling.” I said, “No, I don’t.” I said, “Who is this?” He hung up

Mrs. Pushferran told the court that she had never received such a call before and that the episode upset her. Mr. Buck-halter, on the other hand, said that he had received “prank” telephone calls on a number of earlier occasions unrelated to the trial, and that the one involved here did not bother him any more than the others. At the request of defense counsel, the court excused Mrs. Pushferran from serving on the jury.

In these circumstances, the trial court had a duty to inquire into the character of the potentially prejudicial material to which the jury had been exposed, the extent of the exposure, and its effect upon the jury’s ability to render an impartial verdict. United States v. Barson, 5 Cir. 1970, 434 F.2d 127, 131; Paz v. United States, 5 Cir. 1972, 462 F.2d 740, 747. There are a number of ways in which this duty can be discharged. For example, in the analogous context of potentially prejudicial publicity during the course of trial, the American Bar Association Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, § 3.5(f) (1974), provides that the trial court should determine whether the material disseminated raises “serious questions” of potential prejudice to the defendant. In doing so the court “may on its own motion or shall on motion of either party question each juror, out of the presence of the others” regarding his exposure to the material.

Here, however, so the appellants argue, the court did not question each jur- or out of the presence of the others, as the ABA Standards suggest. Moreover, they suggest that the potential prejudice of the calls was so great in any event that no corrective measures taken by the trial court would have prevented its affecting the jury. We reject both contentions.

This Court recently considered measures that should be taken to ensure that certain inadmissible books which had reached the jury room had not affected the jury’s verdict. In Paz v. United States, 5 Cir. 1972, 462 F.2d 740, 746, we held that the case should be remanded for an evidentiary hearing to determine “how the books reached the jury room; whether they were available to members of the jury, and if so, for how long; the extent if any, to which they were seen, read, discussed and considered by members of the jury; and such other matters as may bear on the issue of the reasonable possibility of whether they affected the verdict”. The books in Paz were on narcotics and drug abuse, and the prosecution was for a drug-related offense. Nevertheless, we imposed no requirement that jurors be examined individually. Here, the telephone calls were vague and not explicitly related to any matter at issue in the trial. We consider that they were not so inherently prejudicial so as to require the grant of a mistrial.

The trial judge took adequate corrective action. He questioned Mrs. Pushferran and Mr. Buckhalter, the only jurors who had received the calls, as to the telephone conversation and examined them as to the nature and extent of their discussion of the calls with the other jurors. Then, in deference to defense counsel’s comment that to question each of the remaining jurors individually would serve to underscore the episode unduly, the court called in the whole jury and asked them whether they were willing to continue serving on the jury and were able to discharge their duties fairly and impartially in spite of the telephone calls. All of the other jurors, except Mrs. Pushferran, who had been excused, and the alternate said that they were able to ignore the incident and proceed to a fair and impartial resolution of the case. In light of the vague nature of the telephone calls and the misgivings defense counsel had voiced regarding individual questioning of the jurors, we hold that the procedure adopted by the trial court was adequate to protect the defendants from potential prejudice stemming from the calls.

II.

Before the first trial involved in this appeal, Lettieri filed a motion under Fed.R.Crim.P. 14 that he be tried separately from Merritt, Spinella, and Buchanan, on the ground that if a separate trial were granted, these co-defendants would testify at his trial and that their testimony would exculpate him. Buchanan and Merritt did not join in this motion, yet they seek reversal of their convictions on the ground that its denial deprived them of a fair trial. Buchanan later filed a motion for entry of an order permitting him to “adopt all motions filed in behalf of” Lettieri. He also executed an affidavit in support of the motion for severance in which he stated that to his knowledge Lettieri “did not commit any of the wrongful acts attributed to him in the indictment”, and that he, Buchanan, would “not testify in a joint trial but would testify in a separate trial.” In cases where the allegedly aggrieved defendant has appealed, a penumbra protection has often been denied co-defendants. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Foster, 7 Cir. 1973, 478 F.2d 1001; United States v. Bamberger, 9 Cir. 1973, 482 F.2d 166; Wright v. United States, 9 Cir. 1965, 353 F.2d 362. Those cases that have allowed any degree of penumbra effect have involved the extension of the protection sought by the directly aggrieved defendant. See Rosencranz v. United States, 1 Cir. 1964, 334 F.2d 738.

Whatever benefit severance might have brought to Lettieri, there is not “the clear showing of prejudice” to Buchanan and Merritt resulting from the denial of the motion for severance that is “required to establish that the District Court abused its discretion in denying the motion”. United States v. Eastwood, 5 Cir. 1974, 489 F.2d 818, 822. Indeed, the appellants have failed to demonstrate any respect in which the denial of Lettieri’s motion prejudiced them. We dismiss therefore as insubstantial the contention that Buchanan and Merritt were denied a fair trial because Lettieri’s motion for severance was denied.

III.

Before the first trial, as we stated, the defendant Lettieri filed a motion for severance on the ground that he would otherwise be denied exculpatory testimony of his co-defendants. The court denied this motion, but noted upon the docket sheet that the denial was without prejudice to Lettieri’s right to renew the motion at time of trial. The court added that the motion as filed was “unsupported by any affidavits or other evidence regarding what the testimony of [co-defendants] will be and its probative value to [Lettieri’s] defense.” After the court denied Lettieri’s motion, but still before the first trial, Spinella filed a document purporting to .adopt all motions previously filed on behalf of the other defendants. It did not mention Lettieri’s motion for severance, nor were there any affidavits or other evidence filed in support of the document. The court, in any event, took no action regarding the document. The trial commenced, and the jury found Spinella guilty as to the first count of the indictment. After the court had sentenced all the defendants, Spinella and Lettieri filed motions for a new trial, and, in support of the motions, an affidavit of Buchanan that he would testify to exculpate them if a new trial were granted. The trial court granted the motion. The new trial for Lettieri and Spinella then commenced. On the second day of trial, the defense rested without having called Buchanan. The court, noting that the only reason it had granted Spinella and Lettieri the new trial was to enable Buchanan to testify on their behalf, discharged the jury, vacated its order granting a new trial, and reinstated the convictions the government had obtained at the first trial.

The court’s chagrin at the turn of events immediately preceding entry of this order is understandable. Defense counsel could not force Buchanan to testify in behalf of Lettieri, but the representations counsel had made to the court, and the fact that Buchanan was in the hall outside the courtroom during the course of the second trial, apparently waiting to be called as a witness so that he could fulfill the promises set forth in his affidavit, led the court to believe that Buchanan would, in fact, testify. Indeed, it might even be argued that the trial court would have abused its discretion if, upon receiving the motion for a new trial supported by Buchanan’s affidavit, it had denied the motion. Cf. Byrd v. Wainwright, 5 Cir. 1970, 428 F.2d 1017, 1022.

The movants failed to make a specific motion for severance, supported by affidavits on other evidence, before the commencement of the original trial. This failure argues strongly for a denial of a new trial. Spinella’s motion, though styled a motion for a new trial, was, in substance, a belated motion for severance; it makes no effort to characterize Buchanan’s affidavit as “newly discovered evidence”. The ABA Standards relating to the Administration of Criminal Justice, Joinder and Severance § 2.1(a) (1974) provides:

A defendant’s motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Severance is waived if not made at the appropriate time.

In the case before us, however, the motion was granted, not denied. We must, therefore, turn our inquiry to the effect of granting the motion after the second jury had been sworn.

Many cases hold that a court of general jurisdiction has the power to vacate an order granting a new trial before the new trial commences in a civil case. See Annot., Power of Court to Vacate or Modify Order Granting New Trial in Civil Case, 61 A.L.R.2d 642. We have found no case, however, dealing specifically with the effect of commencing a second trial on an earlier criminal conviction. Jeopardy attaches when a criminal trial commences before the jury. United States v. Jorn, 1971, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, Green v. United States, 1957, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. The order granting the new trial necessarily has the effect of vacating the judgment of conviction rendered in the earlier trial. Cf. Miller v. United States, 5 Cir. 1955, 224 F.2d 561. It follows, then, that the trial court in the present case had no power to revive a judgment of conviction that became a nullity when the defendants were placed in jeopardy in the second trial. The order granting the new trial was unconditional; there was no waiver by the defendants of their right not to be put in jeopardy twice for the same offense. The fact that a new trial could only work to their advantage, since they had been convicted, is immaterial to the status of the first conviction once the trial began anew.

The only question that remains, once we have determined that the judgment of conviction obtained at the first trial could not be “reinstated”, is whether Spinella may be tried again for the offenses charged in the first two trials. This question, in turn, depends upon whether the trial court was justified in aborting the second trial. The standard to be applied is that first laid down by Mr. Justice Story in 1824: when the trial court on its motion or on motion of the prosecution declares a mistrial, without the consent of the defendant, a retrial is permissible only if there exists a “manifest necessity” for the declaration of the mistrial lest “the ends of public justice would otherwise be defeated”. United States v. Perez, 1824, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165. Perez involved the discharge of a jury that could not reach a unanimous verdict in a capital case, without the consent of the defendant.

Later cases have amplified the test established in Perez. Justice Black, writing for the Court in Wade v. Hunter, 1948, 336 U.S. 684, 688-89, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 stated:

The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.

The Wade Court held that manifest necessity was established when a court-martial, having continued a case to obtain the testimony of witnesses who were ill at the time of the first hearing, was overtaken by events (it was being held during the invasion of Germany in 1945), and therefore dissolved itself and transmitted the charges to another unit then stationed in the vicinity of the alleged offense, where a new court-martial was constituted.

In Gori v. United States, 1961, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, the trial court in the first trial, fearing that the prosecution’s line of questioning was calculated to elicit information that would inform the jury of prior crimes committed by the accused, precipitately declared a mistrial without consulting either the prosecution or the defense. The Court affirmed the defendant’s conviction secured at a second trial on the same offense, noting that the record was “skimpy” and that the court of appeals (which had also affirmed the conviction) was better situated to pass on the trial court’s action, dependent as it was on factors such as the atmosphere in the district court and prosecutorial practices there. The fact that the trial court’s action could only benefit the defendant also weighed heavily on the Court’s mind.

It is this last element that distinguishes Gori from United States v. Jorn, 1971, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. Jorn involved a prosecution for wilful participation in the preparation of fraudulent income tax returns. A taxpayer for whom the defendant had prepared a return was called as a witness, and, at the suggestion of defense counsel, the trial court admonished the witness of his right against self-incrimination. The witness was willing to testify, and informed the court that the Internal Revenue Service agent had advised him of his rights at their first meeting. For some reason, the court was still uneasy, and would not permit him to testify until he had consulted an attorney. There were several other witnesses in a similar situation whom the Government also wished to call. The court therefore declared a mistrial so that all these witnesses would have ample opportunity to consult attorneys and to be advised of their rights. The Supreme Court upheld a plea of former jeopardy when the Government sought to renew the prosecution. The mistrial was declared for the benefit of the witnesses, not the defendant as in Gori. Moreover, the Court noted, the problem of making certain that the taxpayer witnesses were suitably advised of their rights might have been solved by the simple expedient of a continuance, but this course was precluded by the abrupt discharge of the jury.

Both Gori and Jorn may be contrasted with the Supreme Court’s most recent treatment of the general problem. Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425. Somerville involved a prosecution for theft. The grand jury had returned an indictment, the case had been called for trial, and the jury had been sworn. Before any evidence had been presented, the prosecution realized that the indictment was fatally deficient in that it failed to allege that the defendant intended to deprive the owner of the property in question. Under Illinois law, the defect was fatal to the indictment and could be successfully urged on appeal as a jurisdictional defect rendering any final judgment of conviction ineffective. Accordingly, the prosecution moved for a mistrial, which was granted over the defendant’s objection. The Supreme Court upheld the district court’s denial of habeas relief relying in part on such precedents as Lovato v. New Mexico, 1916, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244. In Lovato the Court held that manifest necessity required discharge of the jury when, after it was sworn, the prosecution realized that the defendant had not pleaded to the indictment. The Court in Somerville held that manifest necessity was present and that the trial court need not have let the case proceed to conviction knowing that settled Illinois law would require reversal of the conviction. Lovato and Somerville are both examples of cases in which retrial after mistrial has been permitted because some procedural defect or default on the part of the prosecution threatened to nullify the first proceeding. It is perhaps significant, however, that in both cases the mistrial was declared at the outset, before the taking of evidence.

The determination whether “manifest necessity” exists for the declaration of a mistrial is, of course, an inquiry particularly suited to case-by-case analysis, and not hospitable to generalities. “[Virtually all of the cases turn on the particular facts and thus escape meaningful categorization”. Somerville, 410 U.S. at 464, 93 S.Ct. at 1070. The Government naturally urges that the interest of public justice would best be served by our approval of the trial judge’s action in aborting the second trial. We cannot do this. The trial judge failed to consider alternatives to declaring a mistrial. United States v. Kin Ping Cheung, 5 Cir. 1973, 485 F.2d 689. He could have denied the motion for a new trial, possibly on the ground that the reasons advanced in support of it were not timely presented. Having granted the new trial, he should have let the case go to the jury when it became apparent that the exculpatory testimony of Buchanan would not be forthcoming. There simply was no necessity for aborting the second trial, and, since the order granting the new trial could not be vacated once jeopardy had attached in the second trial, it follows that Spinella must be acquitted of the offenses charged.

This result may be distasteful to some, and we recognize that it might be argued that our decision will serve to encourage motions for new trials in cases involving multiple defendants on grounds similar to those urged in the motion involved in this case. In response, we note that the motion might be denied as untimely. Moreover, when applicable, the statutory sanctions available against false affidavits and false testimony should be invoked against those whose proffer of exculpatory testimony is the basis upon which a new trial has been granted. Further, the prosecutor might well consider the grant of statutory immunity from prosecution, when it is available, as a means of ensuring that the proffered testimony will be forthcoming. Finally, since the device of joint trials is tolerated largely as a means of promoting prosecutorial and judicial economy, the prosecutor might well give careful consideration to seeking separate trials from the beginning in any case in which he has reason to believe the difficulties encountered here may recur: the trial court might give similar consideration to motions for severance in such cases.

We do not reach Spinella’s second contention, that the trial court abused its discretion in denying his motion for severance from Lettieri, filed the day before the second trial and presented to the court by the clerk the morning of the trial.

* * *

For the reasons stated, the judgments of conviction entered against Buchanan and Merritt in the first trial are affirmed. The judgment of conviction entered at that trial against Spinella, which the district court attempted to “reinstate” after aborting the second trial, is vacated, and the cause remanded to the district court with instructions to enter a judgment of acquittal on the offenses charged in favor of Spinella.

Affirmed in part, vacated in part, and remanded with instructions.


author: PER CURIAM:

text:
    The GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Monty Maurice McCLELLAND, Defendant-Appellant.
    No. 74-3598.
    United States Court of Appeals, Fifth Circuit.
    Dec. 26, 1974.
    Monty Maurice McClelland, pro se.
    Lester Engler, U. S. Atty., Thomas E. Haney, Asst. U. S. Atty., Balboa, Canal Zone, for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
   PER CURIAM:

Appellant moves for appointment of counsel to represent him on appeal. Appellee moves to dismiss the appeal as not timely filed. The district judge entered judgment and sentence on August 20, 1974. On September 17, 1974, appellant, although still nominally represented by retained counsel, entered a pro se notice of appeal, which was filed by the clerk on September 19, 1974. This document requests, admittedly in somewhat obscure language, that the district judge extend the time for filing a notice of appeal pursuant to Fed.R.App.P. 4(b) because of appellant’s “excusable neglect.” Since Rule 4(b) allows the district court, “[u]pon a showing of excusable neglect,” to extend the time for filing a notice of appeal for a period not to exceed thirty-days following the expiration of the original ten day period, appellant’s request fell well within the total forty day period in which a notice of appeal may, in proper circumstances, be timely filed.

Although the district judge granted appellant’s concurrent motion to proceed in forma pauperis, the record contains nothing to indicate that appellant’s plea of “excusable neglect” was ever ruled upon. During the hearing on the in for-ma pauperis motion the presiding judge expressed the view that all matters pertaining to the timeliness of the appeal should be addressed to this Court. (Supp.Trans. at 4—5). Thus, the record affirmatively reveals that the district judge failed to exercise his discretion, properly invoked by appellant, to determine the permissibility of a late notice of appeal. In these circumstances we believe that the proper course is to postpone ruling on appellee’s motion to dismiss the appeal and to remand the case so that the district court may decide whether appellant’s failure to file a notice of appeal within the prescribed ten day period was due to excusable neglect. Cf. Cramer v. Wise, 5 Cir. 1974, 494 F.2d 1185; Tuley v. Heyd, 5 Cir. 1974, 492 F.2d 788, and cases cited therein. See also Alley v. Dodge Hotel, D.C.Cir. 1974, 501 F.2d 880; Johnson v. United States, 1968, 132 U.S.App.D.C. 4, 405 F.2d 1072. In the meantime, we will retain jurisdiction.

Although appellant is in no way prevented from renewing the motion should it later become necessary, our disposition of the case renders moot his present motion for appointment of counsel on appeal. The district court, however, may consider appointing counsel to assist McClelland in substantiating his allegations of excusable neglect.

Remanded.

      . Cf. United States v. Mills, 8 Cir. 1970, 430 F.2d 526, 528, where the Court concluded that the district court’s acceptance without comment of appellant’s notice of appeal, more than ten days following entry of judgment, had the effect of granting an extension of time to file.


author: GEE, Circuit Judge:

text:
    George DONIVAN, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 74-3802.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.

      George Donivan, pro se.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Barbara B. Rutledge, Asst. Atty. Gen., Joseph B. Tosterud, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion November 7, 1974, 5 Cir., 1974, 503 F.2d 1401).

Before WISDOM, GOLDBERG and GEE, Circuit Judges.

GEE, Circuit Judge:

The state asks that we reconsider our earlier decision to apply Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), retroactively. We adhere to our decision, believing that the factors supporting retroactivity weigh heavier in the balance.

Of the three considerations pertinent to the retroactivity issue, only the third strongly favors the state. There will be administrative difficulties, as there are with any rule applied retroactively. We do not underestimate the impact on state resources; however, the crux of the Supreme Court’s ruling in Wingo v. Wedding is concern for the integrity of the fact-finding process. The first fact finding may influence heavily, if not dictate, the outcome of the case. Although the question is one of the degree of enhancement, “. rules designed to enhance the reliability of determinations of guilt or innocence are usually applied retroactively.” Williams v. Estelle, 500 F.2d 206, 208-209 (5th Cir. 1974).

Nor was there much ground pre- Wingo for reliance on the practice of allowing magistrates to hold initial evidentiary hearings. Wingo is no more than a reaffirmance of Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), a recognition that it survived enactment of the Federal Magistrates Act. The Court found that the text and the history of the Act indicate a desire to retain the Holiday requirement that judges are to hold the evidentiary hearings. Given the Supreme Court’s analysis of the Act — based in material part on the public record — any profound reliance was fatuous.

Particularly swayed by the purpose to be served by Wingo — proper finding of facts crucial to the truth — we deny the motion for rehearing. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, the petition for rehearing en banc is denied. Motion to stay pending application for writ of certiorari is granted.

      . “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”
      Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). See also, Williams v. Estelle, 500 F.2d 206, 208-210 (5 Cir. 1974).

      . Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 2850, 41 L.Ed.2d 879, 888-889 (1974).


author: BELL, Circuit Judge:

text:
    Henry WELLS, Jr., Plaintiff-Appellant, v. RAMSAY, SCARLETT AND COMPANY, INC., et al., Defendants-Appellees (two cases).
    Nos. 73-3173 and 74-1233.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.

      Johnnie A. Jones, Baton Rouge, La., for plaintiff-appellant.
    William R. D’Armond, Baton Rouge, La., for Ramsay.
    James A. George, Baton Rouge, La., for Local 1833.
    Joseph W. Cole, Jr., Port Allen, La., for Local 1830.
    Before BELL, AINSWORTH and RO-NEY, Circuit Judges.
   BELL, Circuit Judge:

These appeals, consolidated for decision, involve orders entered with respect to a complaint that plaintiff, a black man, was discharged from his position as a foreman for a stevedoring company for racially discriminatory reasons in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and 42 U.S.C.A. § 1981. The employer and Local Unions 1830 and 1833, General Longshore Workers, International Longshoremen’s Association, AFL-CIO, were named as defendants. In addition to seeking relief based on his own discharge, plaintiff sought class action relief on behalf of a class consisting of black longshoremen who were or who might be employed by defendant employer, and who were or might be members of the defendant unions. This class action aspect rested on a claim of racial discrimination in employment opportunities.

Prior to the trial on the merits, the district court determined that the suit could not be maintained as a class action. See Rule 23(c)(1), F.R.Civ.P. One ground for this order was that the class was not too numerous to personally appear. Another was that plaintiff’s position and his grievances were such as not to be representative of the class.

We conclude after studying the record that there was no nexus between plaintiff, a foreman, and the longshoremen named in the class. Plaintiff does not seek to represent a class consisting of black foremen. He was a salaried employee, employed on a monthly basis, who supervised longshoremen. The longshoremen in the asserted class were members of Local 1830, one of the defendant unions. They were assigned on a daily basis through the unions, under collective bargaining agreements, to stevedoring companies for the available longshoremen jobs on the docks in the Baton Rouge area. Plaintiff was not in the longshoremen group for job assignment purposes; indeed, while at one time a member of Local Union 1830, he had severed his affiliation with the union long before his complaint was filed. Moreover, he testified that he was physically unable to perform the services of a longshoreman.

We conclude that the nexus between plaintiff and the class was insufficient and thus the district court did not err in declining to allow the cause to proceed as a class action. Cf. Huff v. N. D. Cass Company of Alabama, 5 Cir., 1973, 485 F.2d 710, 714 (en banc), on the requirement of nexus. One may not represent a class of which he is not a part. Bailey v. Patterson, 1962, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512; Hall v. Beals, 1969, 396 U.S. 45, 49, 90 S.Ct. 200, 24 L.Ed.2d 214.

The other issue presented has to do with the denial of plaintiff’s individual claim on the merits. He was unable to show racial discrimination in connection with his discharge. The record simply does not support his claim. The finding of an absence of racial discrimination is buttressed by strong evidence that plaintiff was discharged for cause and only after provocation which ensued over a considerable period of time.

Affirmed.

      . As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.

      . Local 1830 has a black membership; Local 1833 has a white membership. The available longshoremen jobs are divided between their members on a daily basis at “shape ups”. A claim of racial discrimination arising out of employment practices by the stevedoring companies in the Baton Rouge area and the local unions is involved in a case brought by a longshoreman member of Local 1830 and now pending on appeal in this court under the number and style: No. 74-2544, Bailey v. Ryan Stevedoring Co., et al.

      . The word Nexus taken from Huff, supra, 485 F.2d 712, is defined as “a tying or binding together, a fastening, joining, an interlacing, entwining, clasping.”
      A Latin Dictionary, Lewis and Short, Oxford University Press, p. 1205.


text:
    Harold Lloyd FINKLEA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3598.
    United States Court of Appeals, Fifth Circuit.
    Jan. 13, 1975.
    James A. Mills, Jr., Phil Burleson (Court-appointed), Robt. T. Baskett, Dallas, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Larry F. York, First Asst. Atty. Gen., Joe B. Dibrell, Chief, Enforcement Div., Thomas M. Pollan, Gilbert T. Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

This is an appeal from a denial without hearing of a petition for habeas corpus. We reverse and remand for an evidentiary hearing.

On March 11, 1970, a Dallas County jury convicted petitioner Harold Lloyd Finklea of the possession of eight penny matchboxes filled with marijuana and sentenced him to life imprisonment in the Texas Department of Corrections. More than two years later, on May 31, 1972, the Texas Court of Criminal Appeals approved a Commissioner’s opinion affirming Finklea’s judgment and sentence. Finklea’s subsequent state application for a Writ of Habeas Corpus was denied without hearing by the trial court and affirmed without opinion by the Court of Criminal Appeals.

Having thus exhausted his state remedies, Finklea, on January 8, 1973, petitioned for federal habeas relief in the District Court. On October 9, 1973, his petition was denied without a hearing.

Finklea’s federal petition, like his state application, alleged two main grounds for relief: (1) that the prosecution suppressed evidence favorable to him (a “prosecution report” and search warrant affidavit discussed below) and failed to correct false and perjured testimony of arresting officer Hopgood, the sine qua non prosecution witness; and (2) that he was denied effective assistance of counsel in that his appointed counsel failed, inter alia, to consult with him prior to trial, to interview any witnesses prior to trial, to call any witnesses for the defense, and particularly failed to request or obtain production of the report and affidavit.

As documentary support for his petition, Finklea presented a partial transcript of the trial testimony of Officer Hopgood, a “prosecution report” describxng Hopgood’s arrest of Finklea, on a charge of receiving and concealing stolen property, and a search warrant affidavit sworn by Lt. Charles Hilliard which recited that the facts therein relating to Finklea’s arrest were told to affiant by Officer Hopgood. Hopgood testified at trial that he observed the car in which Finklea was a passenger turn without giving a signal. He stopped the offending vehicle approximately three blocks from 1211 South Main Street in order to issue a traffic citation, and saw the passenger (later discovered to be Finklea) throw an object (which he later found to be a Tastee Bread wrapper containing the marijuana matchboxes and assorted pills) out the window just after the car stopped. After the driver came back to the police car to show his license and inquire as to why he was stopped, Officer Hopgood testified that he walked up to the driver’s window, noticed petitioner trying to hide a box under the front seat, and observed purple narcotics seals on containers in cardboard boxes on the front seat and floor. He then arrested the two occupants, radioed for help, and three other officers, including the Chief of Police and a Police Lieutenant, arrived within two minutes. On cross examination, Hopgood denied knowing or recognizing either Finklea or the driver before the arrest, denied knowing the driver’s residence, denied knowing where the car had started this trip, and denied that he was “staking out” 1211 South Main.

Another prosecution report covering Finklea’s charge for possession of marijuana was attached to respondent’s answer and it appears consistent with Hop-good’s trial testimony. On the other hand, Lt. Hilliard’s search warrant affidavit and the first described prosecution report provide some indication that Hopgood was engaged in staking out the 1211 South Main Street residence of Dale Moore, that he saw the car in which Finklea was a passenger come out of the driveway of the Moore residence, that he recognized the driver and Fink-lea as known narcotics offenders, that they, along with Dale Moore and two others known to be present at his residence on the night of the burglary, were suspects in the narcotics burglary, and that the officer, in effect, made a pretextual traffic stop so that he could search the car. The stolen property prosecution report does not state that petitioner threw any object out of the car. The affidavit does mention that a Tastee Bread wrapper was thrown from the stopped car but asserts it contained “drug administration equipment (needles, syringes, etc).” The affidavit was to obtain a warrant for searching the driver’s alleged residence: 1211 South Main.

Petitioner alleges that an attorney representing him in another matter, discovered the prosecution report and the search warrant affidavit in the District Attorney’s files (after the record had gone up on direct appeal) and copied them. He argues that this evidence should have been made available to his attorney at trial. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He urges that, at the very least, this “new” evidence presents a factual dispute as to whether it came within the ambit of that case and was the type of dispute which could only have been resolved after an evidentiary hearing pursuant to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(d)(6). We agree. The district court did not reach this potential conflict because it considered that the officer’s testimony at trial disclosed that the evidence came from a parcel which had been abandoned rather than being the fruit of a legally questionable search. This view cuts across the appellant’s contention that the prosecution withheld materials which could impeach Hop-good’s credibility. We also hold that petitioner’s claims that his counsel was ineffective presented questions of fact which could not be resolved on the basis of the trial record alone. The standard for judging counsel’s effectiveness is, of course, that set out in Herring v. Estelle, 491 F.2d 125, 127-128 (5th Cir. 1974).

Our recitation of facts is intended solely to explicate our reasoning for requiring an evidentiary hearing and intimates no view on the merits that such a hearing will disclose.

Reversed and remanded.

      . One of petitioner’s arguments on direct appeal and throughout his ensuing habeas endeavors has been that the life sentence he received for the possession of a relatively small amount of marijuana constituted cruel and unusual punishment in violation of the Eighth Amendment. Accordingly, petitioner’s brief urges us to reconsider our decision in Rener v. Beto, 447 F.2d 20 (5th Cir. 1971), continuing the principle that a sentence within the limits set by a legislature is not cruel and unusual. We do not reach this question, however, since the court was informed at oral argument that petitioner’s sentence had been reduced to ten years.

      . Finklea v. State, 481 S.W.2d 889 (Tex.Cr.App.1972). See Vernon’s Tex.Rev.Civ.Stat.Ann., Article 1811e, Sec. 1(a), (c) (Supp.1974-1975).

      . The trial record indicates that Finklea had retained counsel prior to the time when his bond was forfeited and he was rearrested. It further indicates that while he was in jail after rearrest the retained counsel withdrew from the case without his knowledge. At that time the judge declared him indigent and appointed another attorney. Petitioner also alleges that he knew nothing of this withdrawal and counsel appointment until just before trial, when the appointed counsel requested an open court hearing to determine whether Finklea would “accept me as his court appointed attorney for purposes of trial.”

      . As stated, Finklea also raised a claim of cruel and unusual punishment which we pretermitted. See Note 1, supra.

      . This address was the residence of one Dale Moore, a suspect in a very recent narcotics burglary of a doctor’s office located in the 1200 block of South Main.

      . The arrest number and date on both prosecution reports is the same. They appear to be two different reports for two different offenses arising from the same arrest. Petitioner’s response to respondent’s answer below offers to prove that it was the practice for such reports to be referred to a single attorney in the District Attorney’s office.