Levine v. United States, 14442.

• Citation: 104 US App. DC 281,261 F.2d 747
• Decision Date: 18 November 1958
• Docket Number: No. 14442.,14442.
• Parties: Howard D. LEVINE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

104 US App. DC 281, 261 F.2d 747 (1958)

Howard D. LEVINE, Appellant, v. UNITED STATES of America, Appellee.

No. 14442.

United States Court of Appeals District of Columbia Circuit.

Argued October 15, 1958.

Decided November 18, 1958.

Mr. Edward L. Genn, Washington, D. C., with whom Mr. H. Mason Welch, Washington, D. C., was on the brief, for appellant.

Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before PRETTYMAN, Chief Judge, and FAHY and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

Appellant, referred to herein as defendant, seeks reversal of his conviction on an indictment under § 22-1304, D.C. Code (1951) charging that he "did falsely represent himself to be a police officer and attempted to perform the duty and exercise the authority pertaining to such office."¹ A bill of particulars specified inter alia that "the defendant represented himself as a police officer from No. 4 Precinct."

Some seven months before the events leading to the indictment defendant had been admitted to the bar and thereafter had become counsel for one of several young men indicted for rape. It appears that he went to the residence of the victim of the alleged rape to obtain a statement from her. According to her testimony, that of her ten year old daughter, and also that of a man who lived at times at the same place, defendant represented himself on this occasion to be a police officer from No. 4 Precinct. Defendant took the stand and denied making any such representation; he testified in summary that what he said was that he was an attorney for one of the boys involved in the affair, that he had the right to talk to her, the alleged victim, and she to him, that he was an "officer of the Court and that it was my duty to find out what happened so that I could protect my client."

With this conflict in the evidence to be resolved by the jury, defense counsel requested several instructions prepared and submitted in accordance with Fed.R.Crim.P. 30, 18 U.S.C.A.² They overlapped in part so each need not have been granted. But all relating to the conflict were denied. The learned trial judge charged the jury, insofar as now material, only as to the factors the prosecution must establish beyond a reasonable doubt, namely, that defendant falsely represented himself to be a police officer and attempted to perform the duty or to exercise the authority of such an officer, in this instance to obtain a statement in a manner a police officer might employ. Notwithstanding the correctness of so charging the jury the rule is that it is reversible error for the court to refuse on request to instruct also as to defendant's theory of the case. This rule is not confined to cases involving self-defense, illustrated by Meadows v. United States, 65 App.D.C. 275, 82 F.2d 881; or to a special defense such as entrapment, illustrated by Lutfy v. United States, 9 Cir., 1952, 198 F.2d 760, 33 A.L.R.2d 879; or to situations where a lesser offense than that specified in the indictment may be found by the jury, as in State v. Jones, 1948, 52 N.M. 235, 195 P.2d 1020; it applies as well to situations where special facts present an evidentiary theory which if believed defeats the factual theory of the prosecution, as in the case at bar.³ Illustrative is Calderon v. United States, 5 Cir., 1922, 279 F. 556, 558, where the court said:

"Where the evidence presents a theory of defense, and the court\'s attention is particularly directed to it, it is reversible error for the court to refuse to make any charge on such theory. Bird v. United States, 180 U.S. 356, 361, 21 S.Ct. 403, 45 L.Ed. 570; Hendrey v. United States, 6 Cir., 233 F. 5, 18, 147 C.C.A. 75; Liner v. State, 124 Ala. 1, 7, 27 So. 438; Banks v. State, 89 Ga. 75, 14 S.E. 927."

And in Marson v. United States, 6 Cir., 1953, 203 F.2d 904, 912, it is said:

Where a defendant in a criminal case presents a theory supported by the evidence, and the court\'s attention is particularly directed to it, it is reversible error to refuse to give a charge on such a theory.

See, also, McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21; United States v. Indian Trailer Corp., 7 Cir., 1955, 226 F.2d 595; State v. Barnes, 1948, 164 Kan. 424, 190 P.2d 193.⁴

The case before us seems peculiarly one for the application of this rule. The jury should not have been influenced by the court's charge to concentrate unduly upon one side of the conflicting evidence as to whom defendant represented himself to be. It was error to deny the right to a more balanced charge, accorded the defense by the decisions, when the request therefor had the support of substantial evidence.

The court also denied an instruction that to convict him the jury must find that defendant's alleged false representation and performance of duty or exercise of authority was "with the intent to defraud" and the alleged false representation was "relied upon."

We treat first the element of intent. The statute, supra note 1, does not in terms include intent to defraud, or a felonious or criminal intent, in its definition of the crime. But the notable opinion of the Supreme Court in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 244, 96 L.Ed. 288, demonstrates that a criminal intent is an essential ingredient of crimes derived from the common law notwithstanding their modern statutory definitions omit so to state. The Court discussed the basic principle involved, that crime is generally constituted only by the "concurrence of an evil-meaning mind with an evil-doing hand," and continued,

As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.

See, also, Carter v. United States, 102 U.S.App.D.C. 227, 235, 252 F.2d 608, 616.

Morissette involved a violation of 18 U.S.C. § 641 which provides that "whoever embezzles, steals, purloins, or knowingly converts" government property shall be punishable by fine and imprisonment; the Court accordingly was applying a common law principle to a common law type of crime. It was recognized, however, that the principle was not of universal application. The Court said it does not apply to offenses "new to general law, for whose definition the courts have no guidance except the Act." These "depend on no mental element but consist only of forbidden acts or omissions" such as the selling of impure foods, or violation of health and welfare regulations incident to the industrial revolution, or offenses which

do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty.

342 U.S. at page 255, 72 S.Ct. at page 246. As explained in Morissette, the decisions in United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619, United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, and United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48, involved crimes of the latter class, where the Court would not read intent into a statutory definition which omitted it.

We come then to the decisive question whether the crime in the present case falls into the class illustrated by the ruling in Morissette, or is like the cases of Behrman, Balint, and Dotterweich. More pointedly — is this crime a common law offense, such as those against the state, the person, property, or public morals, or is it one "new to general law"? We think the answer does not necessarily depend upon whether the crime as now defined in our code was precisely so defined in the common law; it would still come within the Morissette category if it had definite roots in the common law. As to this we find clear evidences of the offense of false personation in early statutes, cases, and treatises on criminal law, set forth in some detail in the margin.⁵ Various forms of the offense were either public wrongs, misdemeanors, or felonies. This legal history shows that this type of offense is not akin to those enacted to aid in the enforcement of health and welfare regulations, or to enforce care or to punish inaction where one has a duty. False personation is in the nature of "positive aggressions or invasions, with which the common law so often dealt * * *." Morissette v. United States, supra, 342 U.S....