Tatum v. United States

• Citation: 88 US App. DC 386,190 F.2d 612
• Decision Date: 05 May 1951
• Docket Number: No. 10540.,10540.
• Parties: TATUM v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

88 US App. DC 386, 190 F.2d 612 (1951)

TATUM v. UNITED STATES.

No. 10540.

United States Court of Appeals District of Columbia Circuit.

Argued October 2, 1950.

Decided May 5, 1951.

George E. C. Hayes, Washington, D. C. (appointed by the District Court), for appellant.

Richard M. Roberts, Asst. U. S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty., Cecil R. Heflin, Joseph M. Howard, and Harold H. Bacon, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee.

Before CLARK, PRETTYMAN and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant Ernest Tatum, a twenty-seven year old laborer, pleaded "not guilty" to an indictment charging him with the rape of complainant, a nine year old female child.¹ Because appellant was without means to employ counsel, the court appointed a member of the bar to conduct his defense. Upon trial, the jury returned a verdict of "guilty" to which they added the words "with the death penalty" in accordance with their authority under the statute.

The evidence presented by the prosecution revealed that appellant was invited to visit the apartment of friends. He arrived at the house at about 2 p. m. on the afternoon of July 29, 1949. On his way up to the apartment he intended to visit, he stopped in at the apartment on the floor below where the complainant and her mother, whom he had known for about three years, lived. After about five minutes, the mother asked him to leave because it seemed clear to her that he had been drinking. He complied and continued on to his friends. There is evidence that he was drinking whiskey and beer during the course of the afternoon. At about 6 p. m. of the same day, he went down to the yard in front of the building where the complainant child was playing, took her by the arm, and told her to come with him. She obeyed and he led her to a secluded place near the railroad tracks, some ten or twelve blocks away from her home. He kept her in that vicinity for several hours during which time he had intercourse with her once and slept intermittently. At approximately 1:45 the following morning, he took her to the basement dwelling occupied by a Miss Jessie Coppedge. While he was in the bathroom, Miss Coppedge noticed that the child was bleeding and at once telephoned the police. Before the officers arrived, appellant fled through the bathroom window. At about eight o'clock that same morning, appellant telephoned Miss Coppedge and requested that she lend him two dollars and bring it to him at a designated place. She agreed, then called the police who apprehended him. The child had previously been taken to the hospital where she remained for fourteen days because of the injuries attendant upon the act of intercourse.

Appellant took the stand and testified that the child's mother had joined him and his friends in the latters' apartment for a short time during the afternoon of drinking. This was denied by the mother. He further testified that she was very hostile toward him as a result of a past intimate relationship between them. It was his belief that, for that reason, she might have drugged him during the time she was present at the drinking bout. He pointed out that he felt as if he had been "doped" when he left his friends at the end of the afternoon.

In essence, however, the entire defense rested upon appellant's insistence that he remembered nothing of what happened at the time the offense was committed. Much of the record below is devoted to that contention. Nevertheless, counsel for the accused failed to request that the issue of sanity — i. e., legal responsibility for his acts — be submitted to the jury under the guidance of instructions. The court did not mention the subject in its charge. And no exception was taken to such omission. The only questions urged on this appeal as a basis for reversal are (1) improper exercise by the jury of its statutory authority to sentence defendant to death; (2) the trial court's refusal to grant a continuance requested by defense counsel in order to produce an additional witness or two.

Ordinarily, failure of counsel to record his exceptions to the charge would constitute a waiver of the points not raised.² It has always been the custom of this court, however, "in cases of serious criminal offenses, to check carefully the record for error prejudicial to defendant which he did not urge."³ This accords with Rule 52(b) of the Federal Rules of Criminal Procedure, which provides that "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The basic question in any such scrutiny of the record is whether the errors which may be discovered affect "substantial rights." Failure on the part of a trial court in a criminal case to "instruct on all essential questions of law involved in the case, whether requested or not"⁴ would clearly "affect substantial rights" within the meaning of Rule 52(b). Since appellant's defense went to the question of his mental responsibility and there was no reference thereto in the court's charge to the jury, we must determine (1) whether that issue was an "essential" question, (2) whether it was sufficiently raised by the evidence to require its submission to the jury.

When lack of mental capacity is raised as a defense to a charge of crime, the law accepts the general experience of mankind and presumes that all people, including those accused of crime, are sane. But as soon as "some evidence of mental disorder is introduced, the prevailing rule in most jurisdictions is that sanity, like any other fact, must be proved as part of the prosecution's case beyond a reasonable doubt."⁵ That is the rule followed by the Supreme Court and by this court.⁶ The leading authority on the subject is Davis v. United States,⁷ where the Supreme Court said: "Strictly speaking, the burden of proof * * * is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defense is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return of the verdict, is whether upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged." In view of these authorities, it seems clear to us that sanity is an "essential" issue which, if actually litigated — that is, if "some proof is adduced" tending to support the defense — must be submitted to the jury under the guidance of instructions.

We are aware, of course, that any attempt to formulate a quantitative measure of the amount of evidence necessary to raise an issue can produce no more than an illusory definiteness. But if some such measure is to be attempted, we think the best approach is that expressed by us in Kinard v. United States,⁸ a prosecution for murder in which the trial judge had not submitted the issue of manslaughter to the jury. We said there that "`The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.'" Emphasis supplied.

We think it would be incorrect to infer from the language in Holloway v. United States⁹ that the "evidence sufficient to create a reasonable doubt" test is to govern for the purpose of determining when an instruction should be given. The reference in that case was addressed to the nature of the instruction rather than to the state of the evidence making it "essential" that it be given. A rule that an instruction should be given only when an accused presented evidence "sufficient to create a reasonable doubt" would tend to give the presumption of sanity greater effect than appears to have been intended in the Davis case, relied upon in Holloway. The result might be to remove the question of sanity from the jury despite the fact that "some proof is adduced" in support of the defense, and even though the jury is at liberty to reject the opinion evidence of prosecution experts — to believe and disbelieve witnesses, including the accused, as it wishes.¹⁰

In sum, the function of the trial court in regard to the issue of sanity is to determine whether that issue is brought into the case by evidence. If it is, then it should be submitted to the jury with instructions that if the jury has a reasonable doubt of the defendant's sanity, there must be an acquittal.

We are convinced by our examination of the record that the issue of appellant's sanity at the time the offense was committed was sufficiently raised by the testimony at trial to require its submission to the jury under the guidance of instructions. From the moment of his apprehension by the police and continuing throughout the trial below, appellant consistently maintained that he remembered nothing of what had transpired on the critical night. Dr. Murphy, a Deputy Coroner, testified that when appellant was brought before him for examination the day after the crime, "The man appeared to me to be in more or less of a trance."¹¹ Officer Grant, who arrested appellant on the morning after the crime, said "he didn't act normal, in my estimation."¹² There was also testimony from Officer Howe with regard to appellant's appearance as "abnormal."¹³ And, on several occasions during the trial, the prosecutor asked Government witnesses whether appellant had appeared "normal," "insan...