Fisher v. United States, 8809.

• Decision Date: 23 April 1945
• Docket Number: No. 8809.,8809.
• Citation: 149 F.2d 28,80 US App. DC 96
• Parties: FISHER v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

80 US App. DC 96, 149 F.2d 28 (1945)

FISHER v. UNITED STATES.

No. 8809.

United States Court of Appeals District of Columbia.

Argued March 12, 1945.

Decided April 23, 1945.

Mr. Charles H. Houston, of Washington, D. C., for the appellant.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. C., was on the brief, for appellee.

Before MILLER, EDGERTON and ARNOLD, Associate Justices.

ARNOLD, Associate Justice.

This is an appeal from a judgment of conviction and death sentence for murder. The principal contention of appellant is that the evidence is not sufficient to justify the jury in finding that the killing was premeditated.

There was no witness to the homicide, other than defendant. However, the defendant's own testimony showed that he first struck his victim because she had complained about his work. She then ran to the back of the room where the killing took place while he went to the floor above, got a stick from a fireplace, returned downstairs and killed her. In the killing he used the stick and also choked her. Finally, to insure her death he used a knife. All this showed a persistent purpose in the execution of the crime during an appreciable time. The evidence was sufficient to permit the jury to find deliberation.¹

The second ground of error is the exclusion of an uncommunicated complaint which the defendant's victim had made about his work prior to the offense. The complaint was not a threat; there was no claim of self-defense; it was, therefore, properly excluded.²

Expert evidence was introduced by appellant showing that he was a psychopathic personality of the predominantly aggressive type of behavior, and with an apathetic reaction to emotional situations. On the basis of this psychiatric testimony the appellant asked for the following instruction which was denied: "The jury is instructed that in considering the question of intent or lack of intent to kill on the part of the defendant, the question of premeditation or no premeditation, deliberation or no deliberation, whether or not the defendant at the time of the fatal acts was of sound memory and discretion, it should consider the entire personality of the defendant, his mental, nervous, emotional and physical characteristics as developed by the evidence in the case."

The instruction confuses the issue of insanity with the question whether the psychopathic characteristics of the appellant prevented him from forming the deliberate intent necessary to constitute first degree murder. For that reason alone it was properly refused. But even if these issues had been separated there was no evidence justifying an instruction on either of them. So far as insanity is concerned there was no testimony indicating appellant did not know the nature and character of his act or was not conscious of the difference between right and wrong. With respect to the issue of deliberation the psychiatric testimony went no further than to say that appellant was the kind of person who was apt to conceive and carry into effect a brutal murder of this character because of his psychiatric aggressive tendencies and his low emotional response to situations which would deter ordinary men. But it is obvious that brutal murders are not committed by normal people. To give an instruction like the above is to tell the jury that th...