Petition for Rehearing En Banc Denied September 28, 1967.
LEVENTHAL, Circuit Judge:
Appellant was indicted and tried for first-degree murder. The District Court charged the jury on first and second degree murder but refused a defense request for manslaughter instructions on the ground that there was no evidence to support a finding of guilt of this offense. The jury found appellant guilty of first-degree murder, thereby rejecting his claims of innocence and insanity. The jury recommended life imprisonment, see D.C.CODE § 22-2404 (Supp. V, 1966). This appeal followed.
I SUFFICIENCY OF THE EVIDENCE
Appellant first contends that the trial court erred by denying his motion for acquittal of first-degree murder. We disagree. The prosecutor's evidence, viewed in the light most favorable to the Government, revealed these basic events: Appellant had been living with the deceased, as man and wife, for several years. They fought "most of the time." Sometime before November 30, 1963, appellant ceased to live with deceased, returning only occasionally. On that night deceased lay on the bed in her bedroom, in the presence of her 17-year-old daughter and three young men, friends of her son, who were watching television. At about 8:30 p.m., appellant came in the back door, "went straight toward the bed" and said to deceased "I thought you didn't drink any more." Deceased looked at appellant "and told him — and asked him, was he crazy."
Appellant, in effect, admits that this evidence was sufficient to go to the jury on the elements of malice aforethought and specific intent to kill. However, he urges that it was insufficient to warrant submission to the jury of the issues of premeditation and deliberation — to permit a reasonable juror to find beyond a reasonable doubt premeditation and deliberation on the part of appellant. If the prosecution's evidence was insufficient as claimed, the error in failing to grant the motion for acquittal made by appellant at the conclusion of the prosecution's case would require reversal of the first degree murder conviction. See Austin v. United States, 127 U.S. App.D.C. ___, 382 F.2d 129 (No. 19903, decided this day). In this case appellant stresses the lack of evidence of motive or prior threats from which the existence of the necessary state of mind could be inferred. He says the period between his
Appellant's analysis rings true to a point, but it ignores crucial facts. First there was evidence in the Government's case
II ADEQUACY OF INSTRUCTIONS
A. Premeditation and Deliberation. Appellant challenges the trial court's instructions. We begin by considering the brief charge on premeditation and deliberation. The court charged the jury that premeditation was "the formation of the intent or plan to kill", and "deliberation means further thought upon this plan or design to kill." He further charged that if "reflection and consideration amounting to deliberation occurred" this would be sufficient, even if of exceedingly brief duration, although some appreciable period of time must have elapsed in order for this element to be established, "but no particular length of time is necessary for deliberation, and it does not require the lapse of days or hours or even minutes." (Tr. 361-62).
When the jury asked to be reinstructed on the elements of premeditation and deliberation, these instructions were reread.
On request, an accused is entitled to instructions that make clear the distinction between the first and second degrees of murder by reference to the distinction between killings in cold blood and killings on impulse. Austin v. United States, supra. Instructions calculated to lead the jury to conclude that impulsive killings are murder in the first degree are erroneous. The instructions given here were skimpy, but they did set forth the difference between the degrees of murder sufficiently so that we cannot say reversal is required on the ground of plain error, notwithstanding the absence of objection.
The problem areas noted in this opinion are not to be taken as ruling that the charges discussed would be sustained over appropriate objection. We further assume that trial judges will implement the principles set forth today, in Austin, not in a spirit of grudging acquiescence under the spur of objections, but in a whole-hearted effort to improve the administration of criminal justice by illuminating for juries these matters hitherto often relegated to over-generalized and abstruse recitals.
B. Malice Aforethought. We turn to the court's explanation of the concept of malice aforethought, which of course is an element of both first and second degrees of murder. After a general definition of malice not assailed on this appeal,
Malice is an ultimate fact that can rarely be proved by direct evidence. It is both desirable and necessary to
The judge erred in stating that "the law infers * * * malice" from the use of a deadly weapon, and would have been obligated upon request to substitute instead an instruction charging that the law permits the jury to draw this inference of malice.
What we must decide, however, is whether this was "plain error" that wrought such substantial prejudice as to require reversal of the conviction even though no objection was made. We have little doubt that if objection had been made this slip of the tongue by a capable trial judge — assuming the reporter heard him right — would have been corrected. To a lawyer, there is an undeniable gulf between "the law infers" and "the law permits you to infer." We think it unlikely that the jury felt obligated by virtue of this simple phrase to find malice if it found defendant had a deadly weapon, particularly since the possibility of such an understanding was undercut by the context of the phrase. We must consider the impact in the court room, how the words sounded to the ear.
C. Denial of Manslaughter Instruction. Appellant's final contention is that the trial court erred by denying his request for a manslaughter instruction. A defendant is entitled to instructions on a lesser included crime where there is evidence in the record to support a finding of guilt on that offense. Since manslaughter is a lesser included offense in murder, the issue is whether there was enough evidence here to warrant the charge.
There was no such evidence in the prosecution's case, and we turn to appellant's version of events: He testified that he had quarreled with deceased the night before her death, and had eventually left home to spend the night at his sister's house. He returned home the following evening after work and upon entering asked his wife where his tire chains were. At this point his wife became abusive and assaulted him with her hands. In one of her hands she was holding a gun. He began to struggle with his wife when she assaulted him and the gun went off several times during their scuffle, but no one was hit. The fight ended when they fell over a chair, and appellant broke loose and ran out of the house, leaving behind his uninjured wife. When he returned some time later he found her on the bed, dying.
On its face this story, if believed by the jury, could lead only to acquittal since appellant claimed he was not even present when deceased was shot. Appellant's counsel argue to us, however, that the jury was not bound to treat his testimony as a unit, either believing or disbelieving it in its entirety, and that the jury was entitled to accept part of appellant's version — that his wife assaulted him without provocation and that they struggled for possession of the gun — while disbelieving his assertion that his wife was not shot while he was in the room.
We agree with counsel that an accused is entitled to an instruction on manslaughter if there is "any evidence fairly tending to bear upon the issue of manslaughter," however weak, and that the court may not intrude on the province of the jury which may find credibility in testimony that the judge may consider completely overborne by the "simply overwhelming" evidence of the prosecutor. Stevenson v. United States, 162 U.S. 313, 315, 323, 16 S.Ct. 839, 40 L.Ed. 980 (1896); see Kinard v. United States, 68 App.D.C. 250, 253-254, 96 F.2d 522, 525-526 (1938). And there may be "some evidence" of a lesser offense even though this depends on an inference of a state of facts that is ascertained by believing defendant as to part of his testimony and prosecution witnesses on the other points in dispute. Broughman v. United States, 124 U.S.App.D.C. 54, 361 F.2d 71 (1966); Young v. United States, 114 U.S.App.D.C. 42, 309 F.2d 662 (1962).
If the trial court had been specifically apprised of the reconstruction of events now put forward to us by appellate counsel, it would have been well advised to give the manslaughter instruction. We say this out of a conviction that in the balancing of the elements of justice the principle that the jury should be permitted to find the facts is a cornerstone of our jurisprudence that is dominant, where choice must be made, and outweighs the proper concern that the jury should not be allowed to speculate or determine punishment instead of guilt. Perhaps the guidance offered in this paragraph cannot be entirely reconciled as a matter of logic with our discussion in the prior paragraph. However, the administration of justice may be served better by attention to realities than to rigorous logic. In short, we suggest that where the issue is close, the request of defense counsel may properly be given the benefit of the doubt. The danger of giving the jury a power to make punishment lenient (by downgrading the offense) is offset in part by the discretion available to the trial court on sentencing. And it is appropriate to take into account the strain on judicial administration resulting from the need for retrial if the position of the trial court is not sustained on appeal. But even such an approach presumes that the trial court will be reasonably alerted to the factual predicate underlying the instruction requested. Here the testimony did not "fairly tend" to bear on manslaughter, and we cannot assign reversible error to the failure of the trial court to glean and array on its own motion the strained possibilities of events put forward by counsel who have mulled over the appeal, but not advanced at trial either by defense counsel or the witnesses.
* * *
We are left overall with the conviction that essentially this was a case of clear and open conflict between the testimony of defendant and of the several prosecution witnesses, that the jury called for a re-reading of the testimony of the latter and believed their account of the events.
Defense counsel also offered a claim of insanity, but this was rejected by the jury and presents no issue on appeal.
BAZELON, Chief Judge (dissenting):
This is a first degree murder case in which the defendant received a life sentence and in which, according to the majority opinion, (1) the evidence on premeditation and deliberation was weak. (2) the charge on deliberation and premeditation was "brief" and "skimpy," (3) the charge on malice, relevant to first and second degree murder, was error, and (4) the trial judge would have been "well-advised" to give the manslaughter instruction if trial counsel had reconstructed the facts as well as counsel on appeal.
I agree that the evidence could have supported an inference of premeditation. The weakness in the evidence, though, must inform any decision about the prejudicial effect of errors during the trial. For example, the trial judge's charge on premeditation and deliberation was very "skimpy" — indeed so skimpy that the jury asked to be reinstructed on these elements. (The trial judge simply repeated his original charge.) The jury's request casts doubt upon the majority's assumption that the charge adequately explained the difference between the degrees of murder. Further, at least one phrase in the charge was misleading.
I agree also with the majority that "The judge erred in stating that `the law infers * * * malice' from the use of a deadly weapon."
The majority points out that the jury found premeditation and deliberation. If that finding were more soundly based, I might be persuaded that the erroneous charge on malice was nonprejudicial. Here the jury made its findings about premeditation on weak evidence, and after a "skimpy," "brief," and misleading charge.
Finally, I do not think that a request for an instruction should depend on how well the trial lawyer reconstructs the facts for the trial judge.
I think it is fair to assume that the majority would have reversed on the basis of the errors which it finds if the defendant's lawyer had made the proper objections and arguments below. I do not think that the prejudicial nature of these errors is affected in the least by the trial lawyer's apparent oversights. There is no reason to believe that the failure to make these objections and arguments was motivated by considerations of "strategy" or that it was deliberate in any way.
Accordingly, I respectfully dissent.