United States v. Wharton

• Decision Date: 05 January 1970
• Docket Number: No. 22433.,22433.
• Citation: 433 F.2d 451,139 US App. DC 293
• Parties: UNITED STATES of America v. Aubrey WHARTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

139 US App. DC 293, 433 F.2d 451 (1970)

UNITED STATES of America v. Aubrey WHARTON, Appellant.

No. 22433.

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 1969.

Decided January 5, 1970.

Mr. A. Alvis Layne, Washington, D. C. (appointed by this court) for appellant.

Mr. Philip L. Kellogg, Asst. U. S. Atty., for appellee. Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, and Clarence A. Jacobson, Asst. U. S. Atty., were on the brief for appellee.

Before BURGER^*, LEVENTHAL and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellant was indicted and tried on counts of first degree murder¹ and carrying a dangerous weapon without a license.² On the first count, after receiving instructions affording a choice of verdicts ranging downward from first degree murder to acquittal by reason of self-defense, the jury found appellant guilty of murder in the second degree. On the second count, the jury found him guilty as charged, a determination he does not seek to disturb. The trial judge imposed a sentence of imprisonment for a term of from 15 to 45 years, and this appeal followed.

Appellant attacks the murder conviction on several different grounds. We deal primarily with two, both relating to instructions by the trial judge to the jury affecting the legal definition of malice³ as an essential element of murder. We find that the instructions were doubly erroneous and, upon review of the entire record, that the errors operated prejudicially to appellant. We accordingly reverse the second degree murder conviction and remand the case for appropriate action.⁴

I

Appellant admitted firing the three pistol shots that ended the life of the deceased, Walter McQueen. Appellant insisted that he did so in self-defense, while the Government, as we have indicated, averred deliberate and premeditated murder. The death scene was a vacant lot on a Sunday morning, where a group of at least five persons had congregated about a parked truck. It appears without dispute that all parties had been drinking, and that two, Harriet B. Goodwin and McQueen, were engaged in a dice game in the back of the truck. Beyond this, the descriptions of the shooting related at trial progressively diverged.

According to Mrs. Goodwin, appellant came onto the lot and sought but was denied admittance to the dice game in progress. Appellant left but returned within a few minutes, pulled out a pistol and shot McQueen. As the latter ran away, the witness turned her head, and heard but did not see additional shots. Samuel Bennett, who lived across the street from the lot, also heard a shot, and a bit later saw appellant, arm outstretched, raise the pistol to eye level and fire again at McQueen as he endeavored to flee.

A third Government witness, Daniel Wood Minor, admittedly a close friend of the deceased, gave a more elaborate account. Appellant had entered the dice game, but after losing two dollars had left, and was later denied readmittance by McQueen. At this point, appellant went to his car, removed the pistol from the trunk and placed it under his belt.⁵ He returned, drew the pistol, but was admonished by Minor to put it away because "it don't make no sense." Appellant then replaced the gun under his belt, walked around to face McQueen, and shot him. McQueen ran, and appellant shot him again; McQueen fell to the sidewalk and, as he lay there, appellant shot him a third time. There had been, Minor said, no argument or fight between appellant and McQueen.

Appellant, the sole defense witness, stakes his claim to a different version. He was gambling with McQueen when a dispute arose over whether appellant had "made that point." When appellant reached for the money he assertedly had won, McQueen slugged him in the mouth, knocked him down and kicked him. Fearful that McQueen was coming at him again, appellant drew a pistol⁶ and shot McQueen three times, the total number of cartridges in the pistol. After the shooting, appellant drove off in his car, threw the pistol away, and on the following day surrendered to the police. At his preliminary hearing, he exhibited a cut lip and a loose tooth to the United States Commissioner, and attributed them to McQueen's attack.

McQueen died, during emergency surgery, later on the day of the shooting. An autopsy revealed that three bullets entered his body: at the left flank, the right back and the side. These wounds caused massive hemorrhaging which produced shock, from which death ensued. A blood test revealed an alcoholic content at a level generally classified in the intoxicating range, but no lacerations on his hands or arms were noted.

The trial judge charged the jurors on the elements of first and second degree murder, manslaughter and self-defense, explaining that the verdict should represent whichever one of those four possibilities that accorded their view of the evidence. Over appellant's objection, the judge left to the jury's discretion the question whether the death penalty should follow⁷ in the event of a verdict of first degree murder.⁸ While deliberations were under way, the judge complied with the jury's specific request for reinstruction on the three degrees of homicide, but denied appellant's bid for reinstruction on self-defense as well.⁹ As we have stated, the jury fixed appellant's guilt at murder in the second degree.

II

It is against a background deeply rooted in history that appellant's principal grievances on this appeal — alleged instructional errors — must be scrutinized. At common law, murder was unlawful homicide done with "malice aforethought;"¹⁰ done without it, the crime was manslaughter.¹¹ Adoption of these doctrines as part of the law of the District of Columbia¹² has preserved this basic distinction,¹³ although time has eroded literalness from "aforethought" as an ingredient of the distinguishing criterion.¹⁴ So it is that today we find malice¹⁵ as the sole element differentiating murder from manslaughter.¹⁶

The passage of time has also witnessed the legislative refinement of murder into two degrees unknown to the common law.¹⁷ Unlawful homicide committed with "deliberate and premeditated malice" is murder in the first degree;¹⁸ committed with malice, but without deliberation and premeditation, it is murder in the second degree.¹⁹ The tripartite division of unlawful homicide into murder in two degrees and manslaughter, and the role assigned to malice in the classification, assume progressive importance as we proceed through an examination of appellant's contentions.

Two passages in the trial judge's instructions to the jury are identified as targets of appellant's main assault on his conviction. Each appeared in the trial judge's original charge and as well in the portion thereof later repeated at the jury's request. Both passages were erroneous, and we have so held in a series of recent cases.²⁰

The first of the impugned passages was:

In determining whether a wrongful act is intentionally done and is, therefore, done with malice aforethought, you should again bear in mind that every man is presumed to intend the natural and probable consequences of his own act.²¹

In charging that "a wrongful act * * * intentionally done * * * is * * * done with malice aforethought," the judge equated intent with malice, an essential ingredient of murder. In Green v. United States,²² we condemned an instruction in practically identical language, declaring that

A wrongful act intentionally done is not * * * done with malice. Omitted from this definition of malice is the element of wilfulness, which the court elsewhere included in its definition of malice,²³ or that the intentionally done wrongful act was without justification or excuse.²⁴

We also pointed out the harmful propensity of such an instruction:

An element of both degrees of murder is malice; but malice is not an element of manslaughter. Yet manslaughter may be and often is the intentional commission of a wrongful act. From a legal standpoint, therefore, when the court advised the jury that a wrongful act intentionally done is done with malice the effect, unless appellant were found not guilty, was to take the case out of the category of manslaughter and place it in the category of murder, notwithstanding on the facts there was an issue of manslaughter for the jury.²⁵

We accordingly reversed Green's conviction and remanded the case for a new trial.²⁶

The second instructional passage complained of by appellant was:

If in a prosecution for homicide it is shown that the accused used a deadly weapon in the commission of the homicide, the law infers or presumes from the use of such weapon, in the absence of explanatory or mitigating circumstances, the existence of the malice essential to culpable homicide.

You are instructed as a matter of law that a gun is a deadly weapon.²⁷

We have thrice had occasion to consider instructions of that import, and in each instance have disclaimed a legally ccompelled inference or presumption of malice from the use of a deadly weapon in a homicide case.²⁸ In Belton v. United States,²⁹ we explicated:

Malice is an ultimate fact that can rarely be proved by direct evidence. it is both desirable and necessary to instruct the jury that they may infer the existence of malice from other evidentiary facts, including the deadly nature of the weapon utilized. But that does not mean that `the law infers\' malice from use of a deadly weapon. Malice may be established by reference to either of two standards: One, a subjective standard — whether the defendant actually intended or foresaw that death or serious bodily harm would result from his act; and the other, an objective, "reasonable man" standard — whether the defendant should have foreseen that such result was likely. It is for the jury to determine whether the requisite state of mind or negligent pattern of

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