Barbeau v. United States

• Decision Date: 24 January 1952
• Docket Number: No. 12715.,12715.
• Citation: 193 F.2d 945
• Parties: BARBEAU v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

193 F.2d 945 (1951)

BARBEAU v. UNITED STATES.

No. 12715.

United States Court of Appeals Ninth Circuit.

December 17, 1951.

As Amended on Denial of Rehearing January 24, 1952.

George B. Grigsby, Anchorage, Alaska, for appellant.

J. Earl Cooper, U. S. Atty., Ralph E. Moody, Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from a judgment of conviction in the Alaska District Court for manslaughter by culpable negligence.

The appellant Barbeau was indicted for first degree murder under 3 A.C.L.A.1949, § 65-4-1, which reads: "First degree murder. That whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree, and shall suffer death."

The indictment returned by the Grand Jury charged: "That on or about the 18th day of February, 1950 at Anchorage, Third Judicial Division, District of Alaska, Lilburn H. Barbeau purposely and of deliberate and premeditated malice killed Paul Gunn by shooting the said Paul Gunn with a pistol."

On a plea of not guilty, the jury found Barbeau not guilty of murder in the first degree, and not guilty of murder in the second degree, but found him guilty of manslaughter by culpable negligence.

Four issues merit our attention on the appeal from this verdict: (a) did the indictment charge the offense for which the defendant was convicted; (b) was the evidence of negligence sufficient to justify the verdict of culpable negligence; (c) was it error for the district court to overrule the defendant's motion to exclude, from the exhibits taken by the jury, those relating to motive; and (d) was it error for the district court to deny the defendant's motion for acquittal on the charge of second degree murder?

(a) The Federal Rules of Criminal Procedure, 18 U.S.C.A., which apply to the Alaska district court¹ provide: "Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."²

Alaska has its own Criminal Code and 3 A.C.L.A.1949, § 66-13-74, provides: "* * * That in all cases the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime."

Although the wording of these two provisions is slightly different, they are the same in substance. They represent the same policy of liberalizing the rules of criminal pleading. Since the struggle to break away from the early formalism of criminal pleading is still in progress, the question of whether manslaughter by culpable negligence is included in the offense of first degree murder, for the purpose of the indictment and verdict, is not yet completely settled. The question has seldom arisen because culpable negligence is not punished in many states, and where it is punished, it is not an important part of the local criminal law.

In states within the jurisdiction of this court, the tendency has been to regard negligent homicide as included in the crime of murder. Arizona, California, Idaho and Montana all define manslaughter through lack of due care in the same words: "Manslaughter is the unlawful killing of a human being without malice. * * * in the commission of a lawful act which might produce death * * * without due caution and circumspection."³ This specific kind of manslaughter is included in the general definition of manslaughter; there is no separate statement in another section of the criminal code.

Nevada has the same definition with only slight changes in the wording;⁴ and Oregon's definition is virtually the same,⁵ although the definition is in a section separate from the general definition of manslaughter. Washington makes the only significant departure in legislative drafting by defining manslaughter as any kind of homicide which is not excusable or justifiable and which is not set out specifically in other sections of the criminal statutes.⁶ Negligent homicides are prosecuted as manslaughter under this section. The Alaska statute on manslaughter by culpable negligence follows the Oregon technique in that it is set out in a section separate from the general definition of manslaughter.

All of these states provide in substantially similar terms that a jury may return a verdict on a lesser or included offense in the crime charged by the indictment.⁷

The courts of California,⁸ Idaho,⁹ Montana,¹⁰ Oregon¹¹ and Washington¹² have all held that a charge of murder will support a conviction for the crime of manslaughter. Three of these cases in states of the Ninth Circuit jurisdiction involve facts which showed that the defendant was culpably negligent in his conduct which preceded the homicide. However, none of them is on all fours with the present case since in one of them¹³ the indictment was for voluntary manslaughter; in another¹⁴ there was evidence sufficient to find conduct more serious than negligence; and in the third¹⁵ the indictment was for involuntary manslaughter. But the language of these cases shows no reason for setting apart the type of manslaughter accomplished through culpable negligence. All of these decisions state the generalization that all degree of homicide which the law will punish are included in a charge of unlawful killing, so long as the verdict finds a lesser degree of homicide than was charged in the indictment.

We regard the logical extension of these cases in the Western states as the sound view on the question before us. The gravamen of the crime of negligent homicide is the same as that for murder and the same as that for voluntary manslaughter. All are homicides which are not excusable under the law. It is true that they require different states of mind for culpability but this difference goes only to the degree of punishment. It is fruitful to note that most courts have had no difficulty in holding that first degree murder includes voluntary and involuntary manslaughter, although the former requires the specific intent to kill while the latter two do not.

The purpose of specificity in the indictment is, primarily, to give the defendant the benefit of his Constitutional right to be informed of the nature and cause of the accusation against him and, secondarily, to protect him from subsequent prosecution for the same offense.¹⁶ These are practical requirements and the indictment need contain no magic formulae in order to succeed. Have these purposes been met, as far as Barbeau is concerned?

It is clear that Barbeau was informed of the charge against him to the extent that he was not substantially prejudiced during the trial. At the close of the government's case, defendant's attorney moved for acquittal on the charge of first degree murder. In his argument at that time, counsel stated: "The only question which could be submitted to the jury, in my opinion, Your Honor, is the question of whether or not the homicide might or might not have been negligent — the offense also defined by the statutes — and which may be deemed manslaughter under provisions of 65-4-8." That section of the Alaska Code provides:

"§ 65-4-8. — Negligent homicide. That every killing of a human being by the culpable negligence or another, when such killing is not murder in the first or second degree, or is not justifiable or excusable, shall be deemed manslaughter, and shall be punished accordingly."

The attorney renewed his motion at the close of all the evidence and again conceded that there was evidence on the question of negligence to go to the jury, stating: "We have here, it seems to me, the only thing that could possibly go to the jury, the question of whether or not there was such negligence on the handling of the weapon on that occasion as to amount to culpable negligence. And I don't see how the purpose — the necessary elements of a crime of the second degree are present in this case to justify giving the instruction to the jury and we therefore request that the instruction not be given and that the jury be confined to manslaughter by culpable negligence."

In accordance with the attorney's stated view of the Alaska law, the court gave the instruction on the crime of manslaughter by culpable negligence quoted infra.

While the views of defendant's attorney as to the laws of Alaska are not determinative, here he states that he interpreted the Alaska homicide statutes as requiring no more than what was stated in the indictment to present to the jury the issue whether his client was guilty of manslaughter by culpable negligence. The Sixth Amendment was amply satisfied in the light of these facts. We thus have the interesting situation where the appellant's attorney claims error in the district court's acceptance of his view of the law leading to its giving to the jury the appropriate instruction under that law. Here is clearly applicable Rule 52(a) of the Criminal Rules requiring us to disregard any "defect, irregularity or variance which does not affect substantial rights". This rule is a restatement of former § 556 of Title 18 which provided: "No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. * * *"

Nothing in this opinion is in conflict with our decision in Giles v. United States, 9 Cir., 144 F.2d 860. There a conviction for negligent homicide under the Alaska statute was upheld and we affirmed the district court's refusal to...