Andres v. United States

• Decision Date: 22 December 1947
• Docket Number: No. 10815.,10815.
• Parties: ANDRES v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F.2d 468 (1947)

ANDRES v. UNITED STATES.

No. 10815.

Circuit Court of Appeals, Ninth Circuit.

August 14, 1947.

Writ of Certiorari Granted December 22, 1947.

O. P. Soares, of Honolulu, T. H., for appellant.

Ray J. O'Brien, U. S. Atty., and Edward A. Towse, Asst. U. S. Atty., both of Honolulu, T. H., Frank J. Hennessy, U. S. Atty., and Robert B. McMillan, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, MATHEWS, and HEALY, Circuit Judges.

Writ of Certiorari Granted December 22, 1947. See 68 S.Ct. 266.

HEALY, Circuit Judge.

This appeal involves a statute of the United States, Criminal Code § 330, 18 U.S.C.A. § 567, providing, so far as pertinent, that in all cases where an accused is found guilty of the crime of murder in the first degree "the jury may qualify their verdict by adding thereto `without capital punishment'; and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life."¹

On the trial appellant was convicted of first degree murder. The jury's verdict was not qualified, and the accused was given the death sentence in conformity with § 275 of the Criminal Code, 18 U.S.C.A. § 454, providing that every person guilty of such offense shall suffer death. Errors are assigned in respect of certain of the court's instructions. While no exceptions were taken below or objections made to these instructions, the gravity of the case is such that the assignments ought nevertheless be considered.

The court charged the jury that they might return a qualified verdict by adding the words "without capital punishment," in which event the accused would not suffer death; that the power so to qualify was conferred solely upon them and that the court could not prescribe any rule defining its exercise, the entire matter in this respect being committed to their judgment; that even though they were in unanimout agreement beyond a reasonable doubt of the defendant's guilt as charged they might add the qualification; and, finally, that they might so qualify the verdict no matter what the evidence was and without regard to the existence of mitigating circumstances.

The complaint in respect of these instructions is bottomed on Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456, the argument being that the court should have included in the charge the verbiage of the opinion of the Supreme Court in the Winston case in a passage discussing the broad power conferred by the statute upon the jury.² However, it is evident from a reading of the excerpt that the Court did not intend to hold that its comments were necessary or appropriate matter to include in an instruction. The contrary is intimated. The actual holding is that the court is without authority to prescribe rules for the jury defining or circumscribing their exercise of the right conferred; and the error found in the three cases under review was, not that the trial courts had said too little, but that they had said too much. We are satisfied that the instructions, in this instance, adequately advised the jury of their unlimited right to extend clemency for any reason that might appeal to them.

A related claim of error grows out of an admonition given the jury that they must not permit sympathy, or passion or prejudice to affect their judgment, but must determine the case within the narrow channel of right and justice, keeping in mind the charge, the testimony and the law. The argument is that under the holding in Winston v. United States, supra, sympathy may properly sway the jury in the exercise of their power to qualify, and that the instruction had the effect of unduly narrowing the grounds upon which a qualified verdict might be returned. We do not agree. The admonition was given in what may be termed the prologue to the instructions. This introductory matter dealt in general terms with the differing functions of the judge, counsel and the jury in the trial of the case. A study of these introductory remarks persuades us that the instruction complained of could hardly have been understood otherwise than as having reference to the duty of the jury in arriving at their decision on the primary question before them, namely, whether the accused was guilty of the crime charged. It was not until much later in the charge that the court commented on the power to qualify the verdict, and its comments on the subject could leave the jury in no doubt that relief from the death penalty was a matter committed without limitation to their discretion.

A later incident in the trial confirms the justice of this view. After the jury had been sent out they returned to inquire whether, in the event of a verdict of first degree murder, it would be mandatory on the judge to sentence the accused to death, or whether the judge might use his own discretion. The reply was that in the absence of a qualified verdict the death sentence must of necessity be imposed. The court then read once more to the jury its instructions concerning their power to qualify the verdict, thus stressing at a crucial moment the unfettered nature of the right.

A third instruction bearing on the statutory power was that before the jury may return a qualified verdict of first degree murder without capital punishment their decision to do so must be unanimous. This instruction is attacked on the ground that there is no statutory or other authority for it.

The instruction presents the one difficult problem in the case — not because we...