107 F.2d 297 (D.D.C. 1939), 7288, Bishop v. United States

Docket Nº:7288.
Citation:107 F.2d 297
Party Name:BISHOP v. UNITED STATES.
Case Date:October 23, 1939
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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107 F.2d 297 (D.D.C. 1939)

BISHOP

v.

UNITED STATES.

No. 7288.

United States Court of Appeals, District of Columbia.

October 23, 1939

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[Copyrighted Material Omitted]

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Ross O'Donoghue, of Washington, D.C., for appellant.

David A. Pine, U.S. Atty., and Cecil R. Heflin, Asst. U.S. Atty., both of Washington, D.C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate justices.

VINSON, Associate Justice.

This is an appeal from a conviction of murder in the first degree. Several persons testified before the jury that they had seen appellant beat his wife to death with a hammer in Pension Park in the city of Washington. It would serve no useful purpose to comment upon the evidence, which fully supported the verdict of the jury.

Appellant urges that the court erred: (1) in refusing certain prayers offered by him, (2) in its charge that his voluntary intoxication could not reduce the crime from second degree murder to voluntary manslaughter, or warrant an acquittal, (3) in its comment upon the type of crime, (4) in its definition of malice and reasonable doubt, (5) in the charge respecting motive and contradictory statements of witnesses.

There were several prayers offered by the appellant which were granted by the court. At the close of its charge to the jury, the trial court asked counsel if there was anything left uncovered. Counsel for appellant suggested that the court read the prayers. The court replied that his charge had included substantially everything in these prayers, but that if counsel should suggest any omitted point he would be glad to instruct the jury concerning it. Counsel thereupon acquiesced in the understanding that the charge embraced all points contained in the prayers and took no exception to the court's charge theretofore given. However, as this is a capital case, we have painstakingly examined the charge in order that all of appellant's rights may be protected. Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522; Meadows v. United States, 65 App.D.C. 275, 82 F.2d 881. We find that the substance of the prayers granted was 'substantially and fairly covered by the general charge of the court. ' McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21, 32, decided March 28, 1939; Aldridge v. United States, 60 App.D.C. 45, 46, 47 F.2d 407.

Several prayers offered by appellant were refused. We have examined these and uphold the district court in this respect. Counsel for the appellant in his brief contends that the court erred in failing to give one prayer requested, namely: 'The jury are instructed that if the defendant was so intoxicated that he could not entertain the specific purpose required by the statute to constitute murder in the first degree or murder in the second degree, he would not be guilty of either and should be acquitted.'

While, as we have said, the foregoing prayer was denied, the court granted it after it was amended to read as follows: 'The jury are instructed that if the defendant was so intoxicated that he could not entertain the specific purpose required by the statute to constitute murder in the first degree, he would not be guilty of murder in the first degree.'

A comparison of the prayer as presented with the amended form, and with the charge as it covers the point shows clearly the crux of appellant's case. He contends, first, that voluntary intoxication may negative the specific intent to kill, or the deliberation and premeditation necessary to constitute first degree murder, and second, that it may also negative the malice aforethought necessary for second degree murder, and even be sufficient to acquit the defendant of all degrees of homicide. The court accepted the first contention and so charged the jury, but refused the second.

The court charged the jury that if they found that appellant struck the fatal blows, and at the time thereof, was so intoxicated that he could not form the purpose and intent to kill, he would not be guilty of murder in the first degree; and, further, that if the appellant formed the purpose and intent, but, if at the time of the killing, was so intoxicated that he could not deliberate and premeditate upon such purpose and intent, then he would not be guilty of murder

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in the first degree, but would be guilty of murder in the second degree, unless there was sufficient provocation and sudden passion, as to cause a sober man to become so aroused as to kill, which, if shown, would reduce the crime to manslaughter. We append in the margin the portions of the charge pertaining the the intoxication of the appellant, as it related to the degree of the crimes included in the indictment. 1

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Thus the court refused to carry out the request of the prayer as originally submitted and refused to charge that intoxication would negative the 'specific purpose' required by the statute to constitute murder in the second degree or that such intoxication would warrant an acquittal. Error is assigned to the refusal of the court to so charge, and in addition, error is assigned to the standard of sobriety contained in the charge relating to voluntary manslaughter. We are of the opinion that in each instance the court followed the law.

Under the District of Columbia statute, 2 a homicide committed purposely and with deliberate and premeditated malice is murder in the first degree. 3 A homicide committed with malice aforethought without deliberation and premeditation, is murder in the second degree. 'Malice aforethought' may be shown expressly, or may be 'implied' from the commission of the act itself. 4 Although distinction is made in the severity of punishment for the degrees of murder, the statute embodies the substance of murder as it was known to the common law. 5

Intoxication at common law was no defense to the crime of murder. 6 It could neither justify an acquittal, nor reduce common law murder to manslaughter. From an early day to this hour, the law has declared that intoxication is not an excuse for the commission of a crime. While it has long been recognized that intoxication per se is no defense to the fact of guilt, the stated condition of a defendant's mind at the time of the killing in respect of its ability to form the intent to kill, or if formed to deliberate and premeditate thereupon, is now a proper subject for consideration, inquiry, and determination by the jury. Thus, voluntary intoxication will not excuse murder, but it may negative the ability of the defendant to form the specific intent to kill, or the deliberation and premeditation necessary to constitute first degree murder, in which event there is a reduction to second degree murder. 7

The charge of the court upon the voluntary intoxication of appellant in respect to murder in the first degree, murder in the second degree, and manslaughter, was clearly and fairly given-conscientiously so. However, appellant maintains that the defense of voluntary intoxication goes further than the reduction from first degree murder to murder in the second degree, and that the defendant's voluntary intoxication negatived the malice aforethought required to constitute second degree murder under our statute, thereby reducing second degree murder to voluntary manslaughter, or-- as is evidenced by the prayer under discussion-

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-- warranting an acquittal. His contention is met in clear pronouncements from early authorities to the present day. Voluntary intoxication may not reduce murder to voluntary manslaughter, nor permit an acquittal of murder. 8 In Pirtle v. State, supra note 7, it is said: 'As between the two offences of murder in the second degree, and manslaughter, the drunkenness of the offender can form no legitimate matter of inquiry; the killing being voluntary, the offence is necessarily murder in the second degree * * * . ' In Willis v. Commonwealth, supra note 7, it is said: 'Voluntary immediate drunkenness is not admissible to disprove malice, or to reduce the offence to manslaughter,' and this doctrine is approved in Little v. Commonwealth, 163 Va. 1020, 175 S.E. 767

Appellant refers us to Smith v. United States, 50 App.D.C. 208, 269 F. 860, as being in apparent conflict with this holding. That case but impliedly passed upon this point. There was an indictment for second degree murder and a prayer requested which instructed the jury that intoxication would negative the malice aforethought necessary to constitute murder in the second degree, thereby reducing the crime to voluntary manslaughter. The requested prayer was refused, but the trial court so substantially charged the jury. The charge, as given, was more favorable to the defendant than the law contemplates. We held that the requested prayer on intoxication was covered by the charge given, and affirmed solely upon that point. There was no discussion of the underlying principles and no authorities were cited, nor was it necessary in that case. The court found no error prejudicial to appellant and so affirmed. But if there be implication that the charge as there given is a correct statement of the law, it must be and is expressly overruled. Indeed, the able counsel for the appellant herein cites no authority in contravention of the rule to which we must adhere in this case.

The charge of the court that...

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