Day v. Davis, 5344.

• Decision Date: 22 October 1956
• Docket Number: No. 5344.,5344.
• Citation: 235 F.2d 379
• Parties: John E. DAY, Jr., Appellant, v. Colonel James W. DAVIS, Commandant, U. S. Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

235 F.2d 379 (1956)

John E. DAY, Jr., Appellant, v. Colonel James W. DAVIS, Commandant, U. S. Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.

No. 5344.

United States Court of Appeals Tenth Circuit.

June 21, 1956.

Rehearing Denied July 9, 1956.

Certiorari Denied October 22, 1956.

Homer Davis, Leavenworth, Kan., for appellant.

James W. Booth, Lt. Col., JAGC, Department of the Army, Washington, D. C. (William C. Farmer, U. S. Atty., Topeka, Kan., Selby S. Soward, Asst. U. S. Atty., Topeka, Kan., and Cecil L. Forinash, Lt. Col., JAGC, Department of the Army, Washington, D. C., were with him on the brief), for appellee.

Before BRATTON, Chief Judge, PHILLIPS, Circuit Judge, and ROGERS, District Judge.

Certiorari Denied October 22, 1956. See 77 S.Ct. 104.

PHILLIPS, Circuit Judge.

John E. Day, Jr., is in the custody of Colonel James W. Davis, Commandant, U. S. Disciplinary Barracks, at Fort Leavenworth, Kansas, under a court-martial sentence of death. He filed his application for a writ of habeas corpus in the United States District Court for the District of Kansas. Davis filed an answer. After a full hearing, the court entered an order discharging the writ of habeas corpus theretofore issued and remanding Day to the custody of Davis. This is an appeal from that order.

The facts disclosed in the records of the court-martial proceedings are these:

Day was a soldier in the United States Army, stationed in Korea. On the night of December 22-23, 1950, Lee Hak Chun, his wife, Kim Chung Hi, and their three children were in a basement room of the "VIP billets" in the Eighth Army Officers' Building in Seoul, Korea, awaiting transportation to Taegu because the Chinese Communists were then advancing on Seoul. Several other Koreans were in an adjoining room. About midnight, Day came into the room where Lee and his family were waiting, sat down beside Kim and put out the lights. Day then turned on the lights and seized Kim by her throat. A third person intervened and succeeded in taking Kim from Day. Day then struck Lee in the mouth. Day then left the room, but soon returned with an interpreter. He was then clad only in shorts and an undershirt and was carrying a gun (a carbine). The interpreter stated that Day wanted Kim "conceded" to him and told Lee if he did not send the woman upstairs, Day would kill all of them. Day then directed all the people in the basement room to line up. The interpreter told Lee to step out of line and when Lee did so, Day fired two shots into Lee's body, in the vicinity of Lee's heart. Day then seized Kim by the neck and chest and took her outside, where he continued to make advances toward her. When she screamed, Day struck her head with his carbine five times and then took her baby from her back and threw it on the front seat of a truck. At about one o'clock on December 23, 1950, CID Agent Foster went to the "VIP billets," where he found Lee lying on the floor on his back. Foster, who had had four years experience as an undertaker, examined the body of Lee, found no pulse, respiration, or body heat and determined that Lee was dead. On December 25, 1950, a Korean policeman also examined Lee's body, determined that he was dead, and directed his burial.

At the time of the commission of the crime, Seoul was being evacuated because of the Chinese Communists' offensive. Because of the military situation, it was not possible to prepare charges against Day until May 13, 1951. On that date, charges were filed and Day was advised of the charges. The charges were referred for pre-trial investigation, but because of the difficulty in locating the witnesses, it was not possible to complete the investigation until early August, 1951. On August 13, 1951, the original charges were withdrawn because of certain deficiencies, one of which being that the facts did not warrant the charge alleging the murder of the baby. New charges were prepared on August 23, 1951. The new charges were investigated on August 31, 1951, and were referred for trial on September 22, 1951. On the latter date, Day was placed in confinement.

Day signed a written confession on December 24, 1950. The trial commenced on October 1, 1951, more than a week after service of the charges and more than three months after Day was apprised of the charges and furnished counsel for the pretrial investigation. Defense counsel had frequent consultations with Day before the trial and were given ample time to prepare the defense. While formal orders appointing Colonel Abbott as defense counsel for Day had not yet been issued, he began the preparation of the defense on September 9, 1951. There is nothing in the record to indicate that all available defenses were not fully presented and urged at the court-martial trial. Neither Day nor his counsel asked for a continuance.

The charges came on for trial before a general court-martial. Day pleaded not guilty. The evidence adduced clearly established the facts stated above, with respect to the offense.

A written statement made by a soldier who came upon Day and Kim when they were outside the "VIP billets" was admitted in evidence over the objection of counsel for Day. The soldier was placed on the witness stand by the prosecution and when he appeared reluctant to testify and asserted that he could not remember some of the facts and circumstances surrounding the incident, trial counsel sought to refresh his memory by showing him a statement he had made the morning after the shooting. When he testified it only slightly refreshed his memory, trial counsel offered the memorandum in evidence. Upon objection being interposed, the Law Officer interrogated the witness as to whether he remembered the facts independent of his written statement. The witness replied that he knew the statement was accurate and correct at the time he made it, that he could not remember all the details, and that he could remember no more than he had testified to.

At the court-martial trial, the Law Officer advised the court, in part, as follows:

"LO: The Court is advised that the elements of the offenses charged are as follows: a. As to Charge I:

"(1) That the accused unlawfully killed a certain person named by certain means, as alleged;

"(2) That the victim is dead;

"(3) That death resulted from an injury received by the victim;

"(4) That such injury resulted from an act of the accused;

"(5) That death occurred within a year and a day of such act;

"(6) That such killing was with malice aforethought; and

"(7) That the killing was premeditated.

"The court is referred to paragraph 179a, pages 230-232, Manual for Courts-Martial, 1949, for a discussion of the offense of murder and the meaning of the terms `malice aforethought\' and `premeditation\'. Among the lesser included offenses of premeditated murder are unpremeditated murder, voluntary and involuntary manslaughter, attempt to commit murder and certain forms of assault.

"b. The elements of the offense charged in the specification to Charge II are as follows:

"(1) That the accused assaulted a certain person with a certain dangerous weapon; as alleged; and

"(2) That the weapon was used in a manner likely to produce death or great bodily harm.

"The court is referred to paragraph 1801 at page 247, Manual for Courts-Martial 1949, for a discussion of the offense of assault with intent to do bodily harm with a dangerous weapon.

* * * * * *

"The court is further referred to paragraph 154, sub paragraph (2), Manual for Courts-Martial, 1951, for a discussion of voluntary drunkenness as affects intent. I quote:

"`A temporary loss of reason which accompanies and is a part of a drunken spree and which is not the result of delirium tremens or some other mental defect, disease, or derangement is not insanity in the legal sense. It is a general rule of law that voluntary drunkenness not amounting to legal insanity, whether caused by liquor or drugs, is not an excuse for crime committed while in that condition; but such drunkenness may be considered as affecting mental capacity to entertain a specific intent, or to premeditate a design to kill, when either matter is a necessary element of the offense.

"`Evidence of drunkenness should be carefully scrutinized, as drunkenness is easily simulated or may have been resorted to for the purpose of stimulating the nerves to the point of committing the act.\'

"The court is further advised:

"First, that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;

"Second, that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in favor of the accused and he shall be acquitted;

"Third, that if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

"Fourth, that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the Government.

"The rule as to reasonable doubt extends to every element of the offenses charged."

No exception was taken to the charge and no request for further instructions was made by defense counsel. While the Law Officer did not particularly define the terms "malice aforethought" and "premeditation," correct and accurate definitions of "premeditation" were read from recognized authorities, both by counsel for the prosecution and for the defense in the arguments. Counsel for the prosecution quoted as follows from Black's Law Dictionary:

"To think of an act beforehand; to contrive and design; to plot or lay plans for the execution of a purpose."

"The act of meditating in advance; the deliberation upon a contemplated act; plotting or contriving; a design formed to do something before it is done." (2 USC MA 423.)

Defense counsel read from Paragraph 179a of the 1949 Manual, as follows:

"* * * A murder is not premeditated unless the thought of taking life was consciously

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