Clark v. United States, 14243.

• Decision Date: 07 August 1958
• Docket Number: No. 14243.,14243.
• Citation: 104 US App. DC 27,259 F.2d 184
• Parties: James J. CLARK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

104 US App. DC 27, 259 F.2d 184 (1958)

James J. CLARK, Appellant, v. UNITED STATES of America, Appellee.

No. 14243.

United States Court of Appeals District of Columbia Circuit.

Argued March 5, 1958.

Judgment Entered July 21, 1958.

Opinion Filed August 7, 1958.

Petition for Rehearing Denied September 12, 1958.

Mr. Wesley S. Williams, Washington, D. C. (appointed by the District Court) for appellant.

Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll and Joel D. Blackwell, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Chief Judge, and BAZELON and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied September 12, 1958.

EDGERTON, Chief Judge.

This appeal is from a conviction of murder in the first degree.

Appellant pleaded not guilty and testified he "must have been insane." As we said in Tatum v. United States, 88 U.S. App.D.C. 386, 390, 190 F.2d 612, 616, "the function of the trial court in regard to the issue of sanity is to determine whether that issue is brought into the case by evidence." Here, the trial court determined that the issue was brought into the case by evidence. The court instructed the jury that "the defendant has raised the issue of insanity" and that "the first thing you will do is to consider whether or not at the time the crime was committed the defendant was of sound or unsound mind. * * * If you find that he was of unsound mind or have a reasonable doubt about it, of course, you must return a verdict of not guilty by reason of insanity."

But appellant's trial counsel, who was not his present counsel, had already said to the jury: "I think this is a case of manslaughter, not a case of first degree murder * * *. We are not asking you to acquit this man, to free him. We know that he must pay a penalty * *. So that again, I say, we have not asked you, we do not ask you for an acquittal."

Defense counsel's attempt to take the defense of insanity out of the case was error. We cannot say it was not prejudicial. It must have tended, and may have tended effectively, to persuade the jury to disregard the court's subsequent instruction that they should find the defendant not guilty by reason of insanity unless they found, beyond a reasonable doubt, that he was sane.¹

Reversed and remanded for a new trial.

BURGER, Circuit Judge (dissenting).

Appellant and some others, including the deceased, were visiting one night at a gasoline station. Appellant and the deceased, who had both been drinking, but were not drunk, got into a heated argument which stopped just short of blows. Appellant left the station, went to his home a block away, got a shotgun out of a closet, loaded it, returned to the station, and shot the deceased in the back, through the window at a range of three feet, as deceased sat watching television. Before he left the filling station to get the shotgun appellant, by his own pre-trial admissions, said to Jack Douglas, his intended victim, "You had better not be here when I come back."

Appellant testified he had been drinking pretty heavily; that he killed deceased under the influence of alcohol, and that "I did this crime unbeknowing to what I was doing in a crazy and insanity manner," and "I must have been insane," and "I believe I was insane, out of my head." The explanation for his conclusion that he was insane was the fact that he shot deceased in the back; at some points it might be argued that he meant "crazy drunk."¹ In response to a question by the prosecutor, he stated his defense was both intoxication and insanity. on the day of his arrest he told one of the policemen that he had an aunt who was insane; that he was not crazy but would like to be; that he would rather be in St. Elizabeths than jail; that he knew the difference between right and wrong; that he didn't think what he did was right, but the deceased had kept picking on him and threatening him. Thus, there was in reality no evidence of insanity, but only appellant's naked, self-serving speculations that he must have been crazy; and indeed, he had himself contradicted even these statements.

The Government introduced evidence that appellant had been coherent at his arrest, and had appeared normal during interrogation, and had been able to recall what had occurred; beyond this the Government introduced no evidence on insanity.

Appellant's trial attorney (privately retained, not appointed) did not urge the defense of insanity in his closing argument. Instead, he said he was not asking for an acquittal; he conceded that appellant should pay some penalty, but he asked the jury to return a verdict of manslaughter, and not of first degree murder.

The trial court then instructed on insanity. There is no claim that his charge was erroneous. The jury returned a verdict of guilty of first degree murder and appellant was sentenced to death, as the statute requires.

On appeal, appellant had a new attorney who argued three points: First: that appellant's testimony was sufficient evidence to inject the defense of insanity into the case, so as to require an insanity instruction and put upon the Government the burden of proving ...