218 F.2d 856 (D.C. Cir. 1955), 12188, Green v. United States

Docket Nº:12188.
Citation:218 F.2d 856
Party Name:Everett D. GREEN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 20, 1955
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 856

218 F.2d 856 (D.C. Cir. 1955)

Everett D. GREEN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 12188.

United States Court of Appeals, District of Columbia Circuit.

January 20, 1955

Argued Nov. 6, 1654.

Mr. George Blow (appointed by this court), Washington, D.C., for appellant.

Mr. Lewis Carroll, Asst. U.S. Atty., Washington, D.C., with whom Messrs. Leo A. Rover, U.S. Atty., and Thomas A. Flannery, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before WILBUR K. MILLER, PRETTYMAN and DANAHER, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

In the first count of an indictment, Everett Green was charged with arson. 1

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In the second, the grand jury alleged that the death of an elderly woman, Bettie Brown, resulted from the fire set by Green, and so accused him under 22-2401, D.C.Code (1951), 2 which defines the unpurposed killing of another in perpetrating arson as murder in the first degree.

In submitting the case to the jury under the second count, the trial judge instructed on both first and second degree murder. Found guilty of arson under the first count and of murder in the second degree under the second count, Green appeals only from the later.

He says it was error to instruct the jury on second degree murder; that the verdict of guilty under that instruction shows the jury was unwilling to find him guilty of murder in the first degree; that, therefore, had the erroneous second degree instruction not been given, he might well have been acquitted under the second count of the indictment. Thus, the sole question on this appeal is whether the trial judge erred to appellant's prejudice in instructing the jury on second degree murder.

Whether it was error to give that instruction depends on whether there was evidence to justify it; for we have held that under an indictment charging first degree murder done during the perpetration or attempted perpetration of one of the felonies enumerated in § 22-2401, the defendant may, if the evidence warrants it, be found guilty of the necessarily included offense of murder in the second degree. 3

The first degree murder section of the District of Columbia Code, set forth at length in footnote 2, supra, enlarges the common law definition of that crime by adding thereto, inter alia, the unpurposed killing of another in perpetrating arson. So, when the evidence at a trial tends to show the defendant committed arson, and that the fire was the sole cause of the victim's death, the defendant is either guilty of murder in the first degree or he is not guilty.

In the present case, the only evidence as to the cause of the victim's death was that of Dr. Richard M. Rosenberg, Deputy Coroner of the District of Columbia, who performed an autopsy on the body of the victim, Bettie Brown. He testified in part as follows:

'Q. Did you ascertain the cause of death of the deceased Bettie Brown? A. I did.

'Q. Would you state that, Doctor? A. The cause of her death was

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pulmonary edema. That means an accumulation of fluid in the lungs due to acute trachea bronchitis.

'Q. Will you explain that? A. That means inflammation of the trachea, which is the tube that leads from the mouth to the lungs and the bronchi, which are the tubes that lead from the trachea into the lungs themselves. This system of tubes was acutely inflamed, due to lack of oxygen, anoxia, being due to the inhalation of hot irritating gases.

'Q. And the primary cause of death was the inhalation of hot irritating gases? A. That is correct.'

Dr. Rosenberg amplified the foregoing rather extensively in his testimony given under cross-examination by appellant's counsel, a part of which we quote:

'Q. Doctor, did you find anything else wrong with this woman in the course of your examination? A. Yes.

'Q. What? A. She was suffering from rather advanced heart disease. The large blood vessel going off the heart, the aorta, was inflamed and dilated, and the coronaries, which are the arteries in the heart itself, were sclerosed or hardened. She had some degeneration of the liver and also of the kidneys, and she had generalized arteriosclerosis, which means that she had generalized hardening of the arteries.

'Q. Now, Doctor, isn't it a fact that she could have died as a result of this heart condition? A. In the instant case, no.

* * * * * *

'This woman was 83 years of age, and anyone of that age is bound to have degenerative changes in their organs. However, the condition found in her lungs was due to an acute and recent episode, plus the fact that 14% carbon monoxide was found in her blood, which is proof that she had inhaled these hot gases, which were due to the fire and therefore contained carbon monoxide.

* * * * * *

'Q. Then it is on the basis of Doctor Young's report that you made this conclusion as to her death? A. No. My conclusion as to her death was based on what I found in her lungs, to wit, pulmonary edema, inflammation of the trachea and bronchi, and that I believe was due to the inhalation of hot irritating gases, and the presence of the carbon monoxide indicated to me that at the time of the fire the woman was alive.

'Q. Well, now, it indicated to you that at the time of the fire she was alive? A...

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