Bostic v. United States

• Decision Date: 20 December 1937
• Docket Number: No. 6937.,6937.
• Citation: 68 App. DC 167,94 F.2d 636
• Parties: BOSTIC v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 167, 94 F.2d 636 (1937)

BOSTIC v. UNITED STATES.

No. 6937.

United States Court of Appeals for the District of Columbia.

Decided December 20, 1937.^*

Joseph Sitnick, of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and Roger Robb, Asst. U. S. Atty., both of Washington, D. C., for the United States.

Before GRONER and MILLER, JJ., and WHEAT, District Judge.

MILLER, J.

Appellant was convicted in the District Court of murder in the first degree under an indictment charging him with the killing of William Tuckson, Jr., by shooting him with a pistol. He testified in his own behalf. The assignment of error mainly relied upon in this court is that the trial court erred in admitting evidence of the appellant's prior conviction of simple assault. This evidence was offered for the purpose of impeachment, pursuant to the provisions of section 12, Tit. 9, D.C.Code 1929, section 1067, D.C.Code 1924, which reads as follows: "No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or by evidence aliunde."

The word "crime," as used in the statute, includes both felonies and misdemeanors. Murray v. United States, 53 App.D.C. 119, 288 F. 1008, certiorari denied 262 U.S. 757, 43 S.Ct. 703, 67 L.Ed. 1218. A simple assault is a misdemeanor, and hence a crime, under the law of the District of Columbia. Murray v. United States, supra.

Certain language in Clawans v. District of Columbia, 61 App.D.C. 298, 62 F.2d 383, 384, may seem to give some support to appellant's contention. That case involved the admission of evidence of defendant's conviction under a city ordinance before a city magistrate. In holding that evidence inadmissible, we said, inter alia: "But the basis of the admissibility of convictions always was and always should be grounded upon the theory that the depraved character of persons who commit crimes involving moral corruption makes them unworthy of trust in testifying. This theory, however, has little or no basis in the violation of municipal ordinances, or for that matter misdemeanors, involving no element of inherent wickedness." However, the language there used was intended only to distinguish between crimes as such, and that type of delicts which are prohibited by municipal ordinances. It was not intended to modify the plain language of the statute. The test provided by Congress is clear and certain. Any person who has been convicted of a crime, i. e., a felony or misdemeanor, may have that fact given in evidence against him to affect his credit as a witness.

Some of the cases relied on by appellant interpret statutes of different content than that of the District of Columbia — hence, constitute no authority for decision of the present case. Gillman v. State, 1910, 165 Ala. 135, 51 So. 722; People v. Carolan, 1886, 71 Cal. 195, 12 P. 52. The District of Columbia statute is not limited to convictions of felonies, as was the California statute involved in the Carolan Case,¹ or to convictions of crimes involving moral turpitude, as was the Alabama statute on which the Gillman Case was based.² As pointed out by the court in Neal v. United States, 8 Cir., 1 F.2d 637, 638, referring to the Oklahoma statute there under consideration, a statute similar in substance to that of the District of Columbia: "Similar statutes have been enacted in many states of the Union. Under them it is generally held that proof of former conviction of a witness of any crime, regardless of grade, may be shown. (Italics supplied)" Most of the other cases cited by appellant hold no more than that conviction for violation of a municipal ordinance does not constitute conviction of a crime, although some of them discuss or mention the common law rule that the crime must rise to the dignity of a felony, an infamous crime, or a crime involving moral turpitude. Neal v. United States, supra; Gillman v. State, supra; Arhart v. Stark, 6 Misc. 579, 27 N.Y.S. 301; Meredith v. Whillock, 173 Mo.App. 542, 158 S.W. 1061.

In Lawrence v. United States, 8 Cir., 18 F.2d 407, cited by appellant, the common-law rule was followed. The court said: "It is well settled by the decisions in this eighth circuit that evidence of the conviction of a crime for the purpose of affecting the credibility of a witness should be limited to a conviction of a felony, an infamous crime, or a crime involving moral turpitude." The court, in the Lawrence Case, relied upon Haussener v. United States, 8 Cir., 4 F.2d 884, Neal v. United States, supra, and Glover v. United States, 8 Cir., 147 F. 426, 8 Ann.Cas. 1184. Haussener v. United States relies upon Glover v. United States and Neal v. United States. Neal v. United States does not support the proposition, involving as it did only the question of prior conviction under a municipal ordinance, and the dicta of the case, apparently in deference to the case of Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406, is definitely opposed to the proposition for which it is now cited as authority. Glover v. United States is not in any sense authority for the decision in the Lawrence Case. In the Glover Case the questions asked of the witness related, not to convictions, but to arrests and accusations. Whatever was said upon the point in issue in the present case was merely dicta, and in addition it should be noted that (1) the court stated as "the general rule" the rule existing in Missouri prior to the adoption of a statute similar to the District of Columbia statute and not the law even in that state for more than ten years prior to its decision; (2) the court expressly avoided stating the "limit" of crimes which should come within the rule for the federal courts; (3) the absence of a statute in Indian Territory, in which the case originated, was expressly noted; and (4) it was expressly stated that the question would not be decided until it came properly before the court.

Under the circumstances, and in view of the plain language of the statute in the District of Columbia, there is no reason why we should adopt the rule followed in the Eighth Circuit. No useful purpose would be served by substituting for the clear and certain test provided by Congress the difficult and uncertain one of the common law. Indeed, it is not within our province to legislate in such manner and thus defeat one of the most important objects of the statute. The evidence was properly admitted. See, also, Clifton v. United States, 54 App.D.C. 104, 295 F. 925.

It is contended further that there was a fatal absence of deliberation upon the part of the appellant to support a verdict of murder in the first degree. This contention is based upon the theory that there could have been no appreciable lapse of time "between the formation of the design to kill and the actual execution of that design."

This court has stated the applicable rule in Aldridge v. United States, 60 App.D.C. 45, 47 F.2d 407, 408, as follows: "Deliberation and premeditation may be instantaneous. Their existence is to be determined from the facts and circumstances in each case. It is a question, under a proper charge by the court, for the jury to determine."

The authorities agree that no particular length of time is necessary for deliberation. People v. Koenig, 180 N.Y. 155, 162, 72 N.E. 993, 995; People v. Serimarco, 202 N. Y. 225, 229, 95 N.E. 553, 554; Commonwealth v. Tucker, 189 Mass. 457, 494, 495, 76 N.E. 127, 141, 7 L.R.A.,N.S., 1056; Shiflett v. Commonwealth, 143 Va. 609, 130 S.E. 777. It is not the lapse of time itself which constitutes deliberation, but the reflection and consideration, which takes place in the mind of the accused, concerning a design or purpose to kill. People v. Jackson, 196 N.Y. 357, 361, 89 N.E. 924; State v. Lang, 75 N.J.L. 1, 7, 66 A. 942, 945; Commonwealth v. Tucker, supra, 189 Mass. 457, at page 495, 76 N.E. 127, 7 L.R.A.,N.S., 1056. Lapse of time is important because of the opportunity which it affords for deliberation. State v. Smith, 49 Conn. 376; People v. Jackson, supra. The human mind sometimes works so quickly as to make exact measurement of its action impossible, even with the facilities of a psychological laboratory. The jury must determine from the circumstances preceding and surrounding the killing whether reflection and consideration amounting to deliberation actually occurred. People v. Schmidt, 168 N.Y. 568, 61 N.E. 907; State v. Smith, supra, 49 Conn. 376, at page 389. If so, even though it may have been of exceedingly brief duration, that is sufficient. It is the fact of deliberation which is important, rather than the length of time during which it continued. People v. Harris, 209 N.Y. 70, 75, 102 N.E. 546, 548; Commonwealth v. Tucker, supra; Commonwealth v. Scott, 284 Pa. 159, 163, 130 A. 317, 319. In one jurisdiction it has been said that deliberation may be present even though the act of killing follows the intention to kill as instantaneously as successive thoughts of the mind. People v. Donnelly, 190 Cal. 57, 210 P. 523; People v. Bellon, 180 Cal. 706, 710, 182 P. 420, 422. In others the courts have insisted that some appreciable time must elapse in order that reflection and consideration amounting to deliberation may occur. People v. Guadagnino, 233 N.Y. 344, 353, 135 N.E. 594, 597; State v. Clayton, 83 N.J.L. 673, 85 A. 173; State v. Arata, 56 Wash. 185, 105 P. 227, 21 Ann. Cas. 242; State v. Dodds, 54 W.Va. 289, 297, 46 S.E. 228; State v. Greenleaf, 71 N. H. 606, 54 A. 38. This is the better statement of the rule. Even in the latter jurisdictions, however, it is recognized that this does not require the lapse of days or hours, or even minutes. People v. Gilbert, 199 N. Y. 10, 24, 92 N.E. 85, 89, 20 Ann.Cas. 769; State v. Lang, 75 N.J.L. 1, 7, 66 A. 942, 945; State v. Gin Pon, 16 Wash....