Collazo v. United States

• Decision Date: 28 February 1952
• Docket Number: No. 11022.,11022.
• Citation: 196 F.2d 573,90 US App. DC 241
• Parties: COLLAZO v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 241, 196 F.2d 573 (1952)

COLLAZO v. UNITED STATES.

No. 11022.

United States Court of Appeals, District of Columbia Circuit.

Argued November 19, 1951.

Decided February 28, 1952.

Writ of Certiorari Denied June 2, 1952.

Leo A. Rover, Washington, D. C., with whom Sidney S. Sachs and Kenneth D. Wood, Washington, D. C., were on the brief, for appellant. (Counsel for appellant were appointed by the District Court.)

John D. Lane, Asst. U. S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty. at the time the brief was filed, and John W. Fihelly and Joseph M. Howard, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee. Charles M. Irelan, U. S. Atty. at the time of argument, Washington, D. C., also entered an appearance on behalf of appellee.

Before STONE, Circuit Judge (Retired), and PRETTYMAN and FAHY, Circuit Judges.

Writ of Certiorari Denied June 2, 1952. See 72 S.Ct. 1065.

PRETTYMAN, Circuit Judge.

This is an appeal from a judgment of conviction on all counts of an indictment which contained two counts of first degree murder and two counts of assault with intent to kill. The nature of the case itself and of appellant's contentions require that the statement of our considerations be at some length.

We first consider the first count under the first degree murder charge. This count is a charge in the language of the statute. The count reads: "On or about November 1, 1950, and at and within the District of Columbia, Oscar Collazo and Griselio Torresola (since deceased), unlawfully, feloniously, willfully, purposely and with deliberate and premeditated malice, shot and murdered Leslie Coffelt. (Violation Title 22, Section 2401, D.C.Code, 1940 Edition.)"

The local statute on first degree murder reads: "Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree."¹

A premise in the consideration of this matter is Section 105, of Title 22, of the District of Columbia Code (1940), which reads as follows: "In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be."

Torresola actually shot and killed Coffelt. The present appellant, Collazo, was indicted and convicted under the foregoing first count upon the theory that he advised, incited, or connived at the offense, or aided or abetted the principal offender, and thus was himself a principal.

The following facts are established either by the testimony of the appellant himself or by so many disinterested eye witnesses as to be beyond dispute:

Appellant Collazo and the man named Torresola were Puerto Ricans. As boys they lived in the same town. In 1950 they were both in New York City and had seen each other a few times at public meetings of the Nationalist Party of Puerto Rico. On October 29, 1950, Torresola went to Collazo's house with a copy of a Spanish newspaper. They left the house and talked for about two hours about things that were taking place in Puerto Rico. Torresola proposed that they go to Puerto Rico with the intention of giving any help they could.

Puerto Rican matters which they discussed included the so-called Ponce Massacre in 1937; a letter written by an American doctor in 1933; the loss by Puerto Ricans of the control of their port facilities; the loss of their farms by the Puerto Ricans; the killing of Puerto Rican University students in 1934; the organization of the Nationalist Party in Puerto Rico; and the condition of school children in Puerto Rico. "We discussed everything * * *." According to the newspapers in October, 1950, Nationalist Party leaders returning from a public meeting in Fajardo were intercepted by police who tried to assassinate them, fighting broke out in different cities in Puerto Rico, and some thirty people were killed and fifty-one wounded.

The night of October 29th Torresola told Collazo that he had a gun and would get Collazo one. Collazo gave him fifty dollars with which to buy the gun.

The two men met again in New York City the night of October 30th. Collazo told Torresola that instead of going to Puerto Rico a better idea would be to go to Washington and by making some kind of demonstration there bring the situation in Puerto Rico to the attention of the American people. He pointed out that the American people know practically nothing about Puerto Rico or the situation there. They decided upon that plan. Torresola gave Collazo the pistol he had bought for him.

The next day, October 31st, Collazo withdrew a hundred dollars from the bank, did some shopping, buying a suit of clothes, a shirt, underclothing, and a small valise, and bought railroad tickets from New York to Washington.

The two men met at the Pennsylvania Station in New York and took the three-thirty train to Washington. Collazo testified: "In the first place we figured out that a demonstration would never be serious enough * * * to attract the attention of the American people if we were not hurt or wounded or killed in some way."

Upon arriving in Washington the men separated and separately registered at the Harris Hotel under assumed names. The next morning, which was November 1st, they took a taxi and were driven around the city. The taxi driver pointed out Blair House to them and told them that, the White House being under repair, the President of the United States lived in Blair House temporarily. After that they took a walk of a mile or so and then went to lunch. They returned to the hotel and cleaned and oiled their guns. Torresola showed Collazo how to handle the gun, how to fire it, how to insert and remove the clip, and how to insert the bullets in the clip. They took a taxi to the corner of Pennsylvania Avenue and Fifteenth Street. They walked from there to Blair House and returned to the same corner. They decided the best way would be for Collazo to walk west toward Blair House on that (the north) side of the street and that Torresola would cross Pennsylvania Avenue, walk down the street, and recross to Blair House. They planned to meet on the steps of Blair House.

Blair House is really two houses, on the north side of Pennsylvania Avenue. At the east end of these houses, on the sidewalk, is a small wooden guard box with a door opening toward Blair House. At the west end of the houses, on the sidewalk, is an exactly similar guard box with a door opening toward Blair House. Each of the houses has a front entrance, which is a half floor above the sidewalk and is reached by a flight of steps up from the sidewalk. The main entrance is in Blair House itself, which is the easterly of the two houses. As Collazo and Torresola approached, the locations of the officers on guard were: White House Officer Davidson and Secret Service Agent Boring were in the east guard box. White House Officer Birdzell was on the sidewalk immediately in front of the main entrance to Blair House, at the foot of the steps. Officer Coffelt was in the west guard box. Officer Downs was on his way from the west guard box toward the alleyway alongside the west end of Blair House, in which was an entrance to the basement of the house.

Collazo approached from the east, passed the east guard box, and walked up to within from three to eight feet of Birdzell. Birdzell's back was toward him. Torresola, having recrossed Pennsylvania Avenue, approached from the west and stopped at the west guard box. Collazo watched Torresola. Collazo took his gun out, pointed it at Birdzell's back, and pulled the trigger. He had forgotten to release the safety catch. He then released the catch and fired, hitting Birdzell in the upper part of his leg. Simultaneously Torresola fired three shots at Coffelt, who was inside the guard box, and, turning, fired at Birdzell and then at Downs. Coffelt slumped to the floor, pulled his gun, and began firing, killing Torresola. In the meantime, when Birdzell heard the click of Collazo's gun, he whirled, drew his own gun, and moved toward the center of Pennsylvania Avenue, firing at Collazo as he went. Birdzell was hit by Collazo's first shot and again by a shot from Torresola's gun. Instantaneously with Collazo's shot Agent Boring and Officer Davidson drew their guns and began firing from the east guard box. Collazo turned and began firing at them. He fired his entire clip, then sat down on the steps, removed the old clip, inserted a new one, and continued firing. Officer Davidson shot Collazo in the chest, and Collazo slumped to the sidewalk.

I

In the course of its instructions to the jury the court said, among many other things:

"The elements of the offense as charged in the first count outlined in the statute are four. The first is the act, purposely done. The second element is malice. The third element is premeditation. The fourth element is deliberation. Each and all of these elements, as alleged in the indictment, must be established beyond a reasonable doubt before you may find the defendant guilty of murder in the first degree on this count.

"As to the first count malice is an essential element of murder in the first degree and of murder in the second degree. The term malice in this connection does not necessarily involve hatred or...