17 D.C. 562 (D.C.D.C. 1888), 16,810, United States v. Green

Docket Nº:Criminal Docket. 16,810.
Citation:17 D.C. 562
Opinion Judge:MR. JUSTICE MERRICK:
Party Name:THE UNITED STATES v. ALBERT GREEN.
Attorney:MR. R. B. LEWIS, for Appellant: MR. JOHN BLAIR HOGE, District Attorney, for the United States:
Case Date:October 22, 1888
Court:Supreme Court of District of Columbia
 
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Page 562

17 D.C. 562 (D.C.D.C. 1888)

THE UNITED STATES

v.

ALBERT GREEN.

Criminal Docket. No. 16,810.

Supreme Court, District of Columbia.

October 22, 1888

1. Where a motion for a new trial in a capital case is certified to the General Term for hearing in the first instance, and the testimony is not sent up with the motion, the Court not being able to say how far the jury were influenced by it, will, in favorem vitae , presume that they were, perhaps, misled by that portion of the charge which the Court finds erroneous, although other portions of the charge are found to correctly announce the law of the case.

2. In such a case, the verdict being one of murder, a new trial will be granted, where a portion of the charge seems to dwell with undue emphasis upon the effect of the use of a dangerous weapon, and fails altogether to give any consideration to the passion which may have been engendered by the previous conflict between the accused and the deceased.

MOTION in the Criminal Court for a new trial in a case of homicide. Certified to the General Term for hearing in the first instance.

STATEMENT OF THE CASE.

On the 25th day of October, 1887, the defendant, Albert Green, jointly with one Fenton Webb, was indicted for the murder of James Lucas.

On the 1st day of November, 1887, both were arraigned, and pleaded not guilty.

On the 14th of December, 1887, a jury was empannelled for trial of both defendants, and they were jointly tried.

A verdict of not guity was rendered as to Webb, and a verdict of guilty as indicted, as to Green.

A motion was then made in behalf of Green for a new trial on exceptions to the following portions of the charge of the Court:

" Again, gentlemen of the jury, if the defendant Green was the assaulting party, and Lucas did nothing from first to last except resist, or to protect himself, then, even though the defendant Green did not intend to take his life, if the injuries which he inflicted with the knife resulted in the death of Lucas, Green would be guilty of murder, provided you should be satisfied from the evidence and the description of the knife, which you have heard, that it was what the law terms a deadly or dangerous weapon, and that the knife which was used in the manner it was used by the defendant was likely to produce death or grievous bodily harm."

" And lastly, gentlemen, upon this subject I think it my duty to say to you that, even if Lucas began the controversy, it was the duty of the defendant Green to do all he could reasonably to avoid and get out of the way of Lucas, by retreating or otherwise, before he could justify himself in using a dangerous weapon even to protect himself; and if he did not do what he reasonably could, by retreating or otherwise, to get out of the way, but used the weapon, which you shall find from the evidence to be a dangerous weapon— that is entirely for you— intending to take life or to inflict upon Mr. Lucas serious bodily harm, then he is guilty of murder."

The motion was thereupon certified to the Court in General Term for hearing in the first instance.

MR. R. B. LEWIS, for...

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