O'Connor v. United States

Decision Date13 February 1979
Docket NumberNo. 11116.,11116.
Citation399 A.2d 21
PartiesBenjamin P. O'CONNOR, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Thomas W. Farquhar, Washington, D.C., appointed by this court, for appellant.

Noel Anketell Kramer, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before KELLY, KERN and FERREN, Associate Judges.

KERN, Associate Judge:

Appellant was convicted by a jury of murder in the first degree while armed1 and several lesser offenses, viz., carrying a pistol without a license and receiving stolen property.2 He urges on appeal that the evidence adduced was insufficient to support his conviction for murder; the trial court erred in instructing the jury that if it found beyond a reasonable doubt appellant had intended, after deliberation and premeditation, to kill another person but by accident shot and killed the decedent, it could find appellant guilty of murder as charged; the trial court abused its discretion, and thereby committed reversible error, by refusing to continue the trial after the defense counsel had announced ready and put on three witnesses but was unable to produce his other witnesses because they were not present; and the court's sentencing for the offenses other than murder was in error. We affirm the convictions.

The evidence viewed in a light most favorable to the government was that appellant borrowed a maroon-colored auto from his friend, Eric Jackson, explaining that he anticipated trouble if he encountered a certain person who owed him some money; that maroon car was seen a few hours later pursuing another car and shots were heard being fired; at that time the decedent, who was riding nearby in a newspaper delivery truck, was fatally wounded; a police officer stopped appellant because he was driving a car described as having been the pursuing vehicle at the time the fatal shot was fired; while police questioned appellant on the spot, one of his passengers was observed to enter a house in which appellant's cousin, Donna O'Connor, lived; when she admitted the police soon afterward, they discovered a pistol which she acknowledged had been given to her to hide; subsequent tests showed that the bullet removed from the deceased's body came from this gun and that this gun contained both expended shells and live ammunition; and this gun, registered with the police by its lawful owner, Oscar Jackson, had been stolen from him some six months earlier when his place of business was burglarized.

Appellant testified in his own defense that he had obtained the gun that night as a result of intervening in a dispute between two others and disarming one of them who had drawn the gun. He further testified that persons in the other car had pointed a shotgun at him and he had fired only to protect himself. He had picked up two friends after the shooting incident and before being stopped. The trial court gave an instruction to the jury on self-defense.


The first assignment of alleged error concerns the trial judge's decision to allow the government to proceed against appellant on the murder charge on a theory of transferred intent.3 This doctrine, which derives from common law murder, provides that when a defendant purposely attempts to kill one person but by mistake or accident kills another, the felonious intent of the defendant will be transferred from the intended victim to the actual, unintended victim. 40 C.J.S. Homicide § 19 at 865-66. Appellant makes three arguments in contending that the doctrine of transferred intent was improperly invoked in this case. First, appellant asserts that since 1901, when the first District of Columbia Code was adopted, no court in this jurisdiction has adopted the doctrine. Appellant points to the criticism of the doctrine by several legal commentators and argues, therefore, that a doctrine so avoided and so criticized should not be invoked to the detriment of appellant.

Appellant's second argument is that even if this court accepts transferred intent as a part of the District's criminal law, he could at most be convicted only of second-degree murder on this theory. The gravamen of his argument is that transferred intent is a creature of common law and therefore should only be applied to common law murder. First-degree murder, as defined by Section 22-2401 of the Code, is not common law murder but a crime created by statute and restricted to three narrow classes of killings, none of which includes a typical transferred intent situation. Appellant contends therefore that transferred intent, assuming it is part of District of Columbia law, applies only to second-degree murder contained in D.C.Code 1973, § 22-2403, because that provision was intended to codify common law murder.

Finally, appellant claims that the first-degree murder conviction should be overturned on the ground that the evidence adduced at trial was insufficient to permit a reasonable juror to infer premeditation and deliberation, much less a specific intent to kill anyone. According to appellant, the evidence failed to show that appellant specifically intended to kill the driver and/or passengers of the other car or carried out the shooting with premeditation and deliberation. Those elements being absent, his argument goes, he cannot be guilty of first-degree murder under the doctrine of transferred intent for the killing of the unintended victim, the decedent.

As to the claim that transferred intent is not part of the criminal law of the District of Columbia, we are compelled to disagree. First of all, it is beyond dispute that the doctrine of transferred intent is well entrenched in common law. Gladden v. State, 273 Md. 383, 390-92, 330 A.2d 176, 180-81 (1974). As early as 1576, the doctrine was set forth as follows in Reg v. Saunders, 2 Plowd. 473, 75 Eng.Rep. 706 (1576), quoted in Gladden, supra:

"And therefore it is every man's business to foresee what wrong or mischief may happen from that which he does with an ill-intention, and it shall be no excuse for him to say that he intended to kill another, and not the person killed. (c) For if a man of malice prepense shoots an arrow at another with an intent to kill him, and a person to whom he bore no malice is killed by it, this shall be murder in him for when he shot the arrow he intended to kill, and inasmuch as he directed his instrument of death at one, and thereby has killed another, it shall be the same offense in him as if he had killed the person he aimed at, for the end of the act shall be construed by the beginning of it, and the last part shall taste of the first, and as the beginning of the act had malice prepense in it, and consequently imported murder, so the end of the act, viz. the killing of another shall be in the same degree, and therefore it shall be murder, and not homicide only." 2 Plowd. at 474a, 75 Eng.Rep. at 708.

Since that time, the doctrine has gained wide acceptance in the United States and today it represents the majority position in this country. W. Lafave & A. Scott, Jr., Criminal Law § 35 at 252 (1972). It has been noted that

there is a singular unanimity among the decisions to the effect that such a homicide partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been, had the blow fallen upon the intended victim instead of the bystander. Annot., 18 A.L.R. 917, 918 (1922).

The question remains, of course, whether the doctrine forms a part of the criminal law of this jurisdiction and we conclude that it does. D.C.Code 1973, § 49-301, provides that all consistent common law in force in Maryland at the time of the cession of the District of Columbia remains in force as part of the law of the District unless repealed or modified by statute. Linkins v. Protestant Episcopal Cathedral Foundation, 87 U.S.App.D.C. 351, 354, 187 F.2d 357, 360 (1951). In 1776, Maryland adopted the common law of England as it then existed. Gladden v. State, supra 273 Md. at 389; 330 A.2d at 180. McGraw v. State, 234 Md. 273, 275-76, 199 A.2d 229, 230-31, cert. denied, 379 U.S. 862, 85 S.Ct. 124, 13 L.Ed.2d 64 (1964); Lickle v. Boone, 187 Md. 579, 582, 51 A.2d 162, 163 (1947). Recently the Court of Appeals in Maryland made clear that the English common law at that time, and hence the Maryland common law, embraced the concept of transferred intent. Gladden v. State, supra 273 Md. at 389, 330 A.2d at 180. We conclude that the doctrine of transferred intent was contained at the critical time of Maryland's cession of the District within the body of criminal law for the District of Columbia and so was available for the government to use in its theory of prosecution in the instant case. Accordingly, we hold that the trial court did not err in allowing the government to adopt the doctrine of transferred intent in prosecuting appellant.

We likewise reject the argument that since D.C.Code 1973, § 22-2401, creates a crime of first-degree murder separate and distinct from common law murder, transferred intent is not applicable to this statutorily-created crime. This contention runs counter to decisions in this jurisdiction holding the opposite in interpreting that statutory provision. Bishop v. United States, 71 U.S.App.D.C. 132, 135, 107 F.2d 297, 301 (1939); Hamilton v. United States, 26 App. D.C. 382, 385 (1905).

In Bishop v. United States, supra, the United States Court of Appeals for the District of Columbia Circuit gave this construction to § 22-2401:

Under the District of Columbia statute, a homicide committed purposely and with deliberate and premeditated malice is murder in the first degree. A homicide committed with malice aforethought, without deliberation and premeditation, is murder in the second degree. "Malice aforethought" may...

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