Eagleston v. United States

• Decision Date: 18 April 1949
• Docket Number: No. 11545.,11545.
• Citation: 172 F.2d 194
• Parties: EAGLESTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F.2d 194 (1949)

EAGLESTON v. UNITED STATES.

No. 11545.

United States Court of Appeals Ninth Circuit.

January 7, 1949.

Rehearing Denied February 4, 1949.

Writ of Certiorari Denied April 18, 1949.

George B. Grigsby, of Anchorage, Alaska, and George T. Davis, Harold C. Faulkner and A. J. Zirpoli, all of San Francisco, Cal. (A. A. Spiegel, Sol A. Abrams and Anthony E. O'Brien, all of San Francisco, Cal., of counsel), for appellant.

Raymond E. Plummer, U. S. Atty., of Anchorage, Alaska, for appellee.

Before MATHEWS, HEALY and BONE, Circuit Judges.

Writ of Certiorari Denied April 18, 1949. See 69 S.Ct. 882.

BONE, Circuit Judge.

Appeal from a judgment of conviction upon the verdict of a jury under an indictment¹ charging appellant with assault upon one Rowley with a dangerous weapon in violation of Section 4778 Compiled Laws of Alaska. Motions for a new trial and arrest of judgment were denied and a sentence of imprisonment imposed.

This case grew out of a short argument between appellant and Rowley over a business matter. The argument was followed by a brief fistic encounter between them in which Rowley was knocked or pushed into a wood pile. It is the theory of the prosecution that while Rowley was still on the ground and trying to rise, appellant picked up a garden rake and struck him on the head with this implement, the blow fracturing his skull. This alleged assault with the rake is the basis of the charge in the indictment.

Miles and Foote were present at the time of the alleged assault. Their testimony at the trial differs in detail as to exactly what was said and done by appellant and Rowley, but the testimony of all four men, together with that of one Strutz, who was nearby, tends to establish as true the following facts:

Rowley and Miles (the latter then an employee of appellant) called upon appellant at his house to discuss a prospective purchase by Rowley of an oil tank owned by appellant. Upon entering the house they knocked at appellant's bedroom door, after which a conversation ensued, largely between Miles and appellant, concerning whether the price for the tank was $150 or $250. They were unable to agree and Miles and Rowley then left the house, Miles preceding Rowley by several feet, appellant following Rowley. The three men went toward and through a door leading to appellant's back yard, and entered this yard.

As Rowley and appellant emerged from the door, appellant stated to Rowley that his price for the tank was $250 and Rowley could take it or leave it; that Rowley could not argue about it in his (appellant's) house or call him a liar, whereupon Rowley said, "you are." Appellant then demanded that Rowley remove his glasses, Rowley complied, and both men put up their hands in a "sparring" attitude. Appellant struck and/or pushed Rowley one or more times which caused Rowley to stagger back and fall on his left side into or against a wood pile.² While lying on his left side Rowley appeared to be using his elbows in an attempt to get to his feet, and at this time appellant seized a garden rake and struck Rowley on the head with this rake.³

Foote saw (and described) the events immediately prior and subsequent to appellant's striking Rowley with the rake, but the actions of these two men were out of his line of vision for a very brief period at the time Rowley was trying to get up after being hit or pushed by appellant, and Foote did not see the striking with the rake. He did not hear all of the conversation between the principals, but did hear Rowley say "you are" when appellant stated that Rowley could not call him a liar. Miles, standing close by, did not hear Rowley make such a remark.

After the blow with the rake Foote took it from the hands of appellant and set it to one side, saying to appellant, "you can't use something like that. You don't need it."

Aside from the noted colloquy between Rowley and appellant, Rowley made no threats or gestures toward appellant.

Strutz was about 35 or 45 feet away from that point but he saw the group of four men in appellant's yard; he saw appellant grab a long handled instrument — it "seemed" like a rake at the time, and then strike in the direction of the position where he had previously believed Rowley to be; that one man fell which removed the fallen man from his line of vision, but appellant was striking with the rake in the direction of where the fallen man had been before he fell. Strutz then approached the group of men and saw Rowley lying on his left side on the ground with a wound in his head, his foot was "kicking," and he appeared to be "in a bad way." Strutz stated to "the tall, slim fellow" (appellant) "you struck him hard," to which appellant replied, "did you see me strike him?" to which Strutz replied, "I certainly did." Later Strutz was unable to determine whether the long handled instrument he saw was a rake or a shovel — this after he was called to the police station to view various instruments picked up at the scene by officers.

We summarize the testimony of appellant and Rowley dealing with the events at that time.

Rowley testified that after the discussion in the house regarding the price of the tank, and while he was going out of the door of appellant's house, appellant told him to take off his glasses which he did, after which appellant hit him once with his fist. He did not remember much after that. He has no vision in his right eye, but his left eye is fairly good. He "went backward" and remembered that he tried to get up. Appellant reached over by the building and picked up an implement and raised it over his (appellant's) head and then everything went black and then he felt a pain in his head after which a woman put wet towels on his head and he was taken to the hospital by two policemen. His glasses were off and in his physical condition he did not know what instrument appellant had in his hand.

The substance of appellant's testimony is that he regarded "the argument" with Rowley as a dispute over the price of the tank; at the conclusion of this argument he stated to Rowley, "you can't call me a liar in my own house"; Rowley stepped outside the door and said "you are a liar"; appellant said, "take off your glasses"; which Rowley did; they started to spar around; Rowley hit at appellant three or four times; then Rowley hit appellant and appellant hit Rowley and gave him a shove and Rowley "got on the ground," started to get up, and appellant stepped back and grabbed a rake and lifted it up; appellant grabbed this rake because he was "winded" — he wanted Rowley to stop — he grabbed the rake to scare Rowley and get him to stop — Rowley started to get up, part way, then fell back down and laid there — appellant never struck him with any implement or any weapon at all; Strutz came running up after Rowley was laying on the ground and appellant had the rake in his hand — Foote said, "you don't need that. The man's hurt," and Strutz said, "get a doctor yourself" after appellant said, "get a doctor."

Two doctors testified for appellant. They were of the opinion that the skull fracture could have been caused by a fall in which Rowley's head struck a shovel, or a rake, also that the fracture could have been caused by a blow from a rake. Neither of these doctors had attended Rowley in a professional capacity after the injury, but one of them, Dr. Davis, said that he had called at the hospital and looked at Rowley's head wound prior to surgery and while doing so made a mental measurement of its extent. (See footnote 3.) X-ray pictures were used to illustrate their testimony.

The foregoing presents a general picture of the evidence as to what actually happened at the time of the alleged assault, and on this evidence, together with testimony of medical experts and that of witnesses relative to the reputation of Miles and a previous conviction of appellant, the case went to the jury.⁴

Under the evidence admitted for its consideration, the jury faced the necessity of determining the following controlling issues: (1) did appellant seize a rake and use it as a weapon with which to strike Rowley on the head at a time when Rowley was lying on the ground after a brief fistic encounter with appellant, (2) if appellant so used a rake, was such use an assault with "a dangerous weapon," as charged in the indictment, (3) did the skull fracture suffered by Rowley result from a blow from a rake wielded by appellant, or was the fracture the result of Rowley's head accidentally hitting a shovel or some other object when he was knocked or pushed by appellant into or against a wood pile, (4) if appellant struck Rowley on the head with a rake did he strike this blow wilfully, feloniously and unlawfully, as charged in the indictment?

By its verdict the jury resolved all of these issues against appellant, and we think that the evidence fully sustains the verdict beyond a reasonable doubt.

Two general exceptions were taken to the instructions. One dealt with a refusal to instruct (in language suggested by appellant) concerning a previous conviction of appellant. We see nothing objectionable in the language employed by the court in its instruction on this matter. The other related to language in sub-paragraphs 4-D and 4-E of the instructions.

A general criticism of 4-D⁵ is that it assumes on its face that appellant was the aggressor. The specific reason here assigned is that in giving this instruction the court completely removed the issue of self-defense. It is argued that there is sharp conflict as to who struck the first blow with a fist; that the evidence shows that Rowley struck the first blow in the altercation and that self-defense is a valid defense to a charge of assault, as is the issue of self-defense in a prosecution for assault with a dangerous weapon. It is strongly urged that "the positive testimony of appellant clearly injected the theory of self-defense into this case."

We do not agree with this contention. As...