Arpan v. United States

• Decision Date: 01 December 1958
• Docket Number: No. 15809.,15809.
• Citation: 260 F.2d 649
• Parties: Clayton ARPAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F.2d 649 (1958)

Clayton ARPAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15809.

United States Court of Appeals Eighth Circuit.

September 24, 1958.

Rehearing Denied December 1, 1958.

COPYRIGHT MATERIAL OMITTED

Robert H. Allen, Phoenix, Ariz. (Flynn & Allen, Phoenix, Ariz., on the brief), for appellant.

Clinton G. Richards, U. S. Atty., Sioux Falls, S. D. (Lyle E. Cheever, Asst. U. S. Atty., Sioux Falls, S. D., on the brief), for appellee.

Before GARDNER, Chief Judge, JOHNSEN, Circuit Judge, and DUNCAN, District Judge.

JOHNSEN, Circuit Judge.

Appellant, a 29-year old Indian, was charged with having murdered his wife, in the second degree, on the Cheyenne Indian Reservation in South Dakota. He was found guilty by a jury and was sentenced by the court to 15 years imprisonment. Federal jurisdiction rests on 18 U.S.C.A. §§ 1153 and 1111.

The wife was shot in the brain, by a bullet from a .22 caliber pistol belonging to appellant — the fatality having occurred in the bedroom of their home, about 2 o'clock a. m., on December 13, 1956. Appellant admitted that he was in the house at the time but professed to be without knowledge or impression of what had happened or of how the gun had been discharged. He had returned home a little over a half hour preceding, from a beer and vodka spree with some companions, which had lasted from shortly after 6 o'clock in the evening until around 1 o'clock a. m.

Initially, he and his wife had gone over to his parents' home, about 6 o'clock p. m., for an evening visit. Within a short time, two cronies of his appeared and wanted him to drive them to a nearby town to get some liquor. The wife went along on the trip, and during its course the men began to partake of a bottle of vodka, which one of them had. After purchasing a supply of vodka and beer at the town tavern, they drove back to appellant's home on the Reservation, to watch a 9 o'clock boxing telecast. The men continued their vodka imbibing, both on the return trip and through the telecast.

Meanwhile, another crony made his appearance and, when the boxing program was over the four companions set out in appellant's car. Their first stop was at the house of one of the cronies, where they extended their drinking operations until their host came to the end of his capacity and had to be put to bed. The survivors thereupon excursed to town again, keeping up their thirst-slaking efforts, both on the road and at the tavern. When the tavern closed its doors at midnight, they started back toward the Reservation, with a resumption of their bottle-passing ritual in the car.

Ere they got entirely home, the car ran out of gasoline. Another automobilist who came along — a friend of theirs — pushed them the rest of the way and into appellant's yard, alongside the house. By that time, a second member of the group had succumbed and was accordingly left slumbering in the car. Appellant and the other stalwart, however, were not yet ready to call it quits, and with a recruiting of their Samaritan friend and his automobile they betook themselves back to the house of the crony who had been the first to pass out, where some vodka, which they had left, presented a matter of unfinished business. Finally, when there was nothing more to consume, the friend brought them back to appellant's home, which appellant and his companion entered, with the friend driving off.

According to the testimony of the companion, appellant's wife was still up when they came in, and cordial words were exchanged amongst them. The companion departed about 1:30 a. m., at which time the wife had withdrawn to the bedroom and appellant was standing in the doorway thereof. It was about a half hour later that the shooting occurred.

Appellant's story as to the fatality was that his mind was completely blank on what he had done or whom he had been with, from the time that they had put the first crony to bed and left his house, until his stupified senses became partially aroused by the sound of a pistol shot. When the realization of hearing a shot came to him, it was his impression that he was either sitting, or standing, "or something", in the front room of the home, just off the bedroom. He remembered finding himself thereafter, as his consciousness increased, standing in the bedroom and seeing his wife lying prostrate on the floor, by the side of the bed. He said that he picked her up, put her on the bed, held her, covered her, and then ran for his mother and father, who lived nearby. He declared in his testimony that he did not believe that he had shot his wife, but that it might be possible in his stuporous state that he had done so. His position, both to the investigating officers and on the witness stand, was, "I just don't know".

The first contention urged for reversal is that the court erred in denying appellant's motion for acquittal and his subsequent motion to set aside the jury's verdict, because the evidence was not sufficient, in necessary element of corpus delicti, to establish that the wife "came to (her) death by violence and under such circumstances as to exclude the supposition of a death by accident or suicide and warranting the conclusion that such death was inflicted by a human agent; leaving the question who that guilty agent is to after consideration". The language thus quoted by appellant is from the opinion of Chief Justice Shaw, in Commonwealth v. Webster, Mass., Bemis Rep. 473, adopted by Professor Wigmore for text purposes, in VII Wigmore on Evidence, 3rd ed., § 2072, at p. 402.

There is no dispute as to the fact that the wife's death was due to the discharge of a gun and the penetration of her brain thereby, so that necessarily, in physical aspect and by legal concept, she died from violent means, or in other words came to her death by violence. The only thing further, therefore, that the evidence was required to do, in corpus delicti essential, was to exclude the supposition of accident or suicide and to warrant the conclusion that the death was inflicted by other human agency capable in the situation of being criminal.

For purpose of appellant's motion to be acquitted on corpus delicti ground as a matter of law, the sufficiency of the evidence to exclude accident or suicide and to warrant a conclusion of criminal causation would turn, in the court's legal testing thereof, not on whether the probative basis for such exclusion and warrant amounted to legal absoluteness, but upon whether it possessed such substantiality, on over-all perspective, as to be capable rationally of allowing such a jury persuasion and finding. Whether the accused represented that human agency, and, if so, whether what he did, though probatively capable of being found to be criminal, was, in application to him on the circumstances involved, such in fact, are questions extending beyond the matter of corpus delicti and going to the specificness or merits of personal guilt.

In the situation presented, the bullet had channeled into the wife's brain through a hole in the left side of her neck, located approximately two inches below and one inch behind the lower aspect of the left ear. The course of the missile had been upward and to the right, at an angle of approximately 45 degrees in each direction. The wife admittedly was right-handed. It also was shown that she had a 50 per cent rotative limitation, with accompanying muscular atrophy and weakness, existing in her left forearm, from a fracture and injury occasioned by an automobile accident of 2½ years before.

By common knowledge or on simple demonstration, these facts would be capable of rationally convincing that a firing of the gun by the wife personally, in a manner necessary to produce the mortal wound, would be of such practical impossibility or artificial difficulty as not to make compelling a supposition of suicide shooting, by protective doubt of law. And corroboratively, the circumstance that the wife had, immediately preceding, in her preparation for retiring, placed her clothing in orderly array and natural position for convenient redressing, on a chair by the bed, would be capable of pointing to the nonexistence of suicide distractedness on her part in the drama involved. Again, the lack of proximity of her fingers or hand to the gun, as well as the presence of appellant's fur cap under her arm, could further add to the probative incongruity of suicide as against other human agency.

Equally were the circumstances probatively sufficient to exclude the supposition of death from accident on the part of the wife, as a doubt of law. The location of the wound and the presence of a burnt or blackened area surrounding it, as shown by the evidence, would on accident hypothesis, mean a supposition that the wife had been engaged in recreational, experimental, or other personal attempt, at 2 o'clock in the morning, to bring the barrel of the gun around to a position just below her left ear — or that she had been reclining with it under or immediately adjacent to her head — and that it had, in one or the other of these situations, undergone a fortuitous discharge. The facts and circumstances set out seem to us to contain such elements of probativeness rationally opposing this possibility, as not to make legally compelling a supposition of accidental death and as to entitle the question of non-accidental causation to be left to the jury.

Appellant makes the further contention, however, that even if the proof was thus adequate against suicide or accident supposition for corpus delicti purposes, still it was not sufficient to permit of a finding of personal guilt of homicide on the part of appellant beyond a reasonable doubt.

On the question of personal guilt, renewal is made of the argument that the evidence is open to "the real possibility" that the wife may have committed suicide or may have shot herself accidentally. What we have said on corpus delicti aspect, as to the contrary probativeness...