Frank v. United States

• Decision Date: 07 July 1930
• Docket Number: No. 6065.,6065.
• Citation: 42 F.2d 623
• Parties: FRANK v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

42 F.2d 623 (1930)

FRANK v. UNITED STATES.

No. 6065.

Circuit Court of Appeals, Ninth Circuit.

July 7, 1930.

Thomas R. Lyons and Ira D. Orton, both of Seattle, Wash., and O. D. Cochran and Hugh O'Neill, both of Nome, Alaska, for appellant.

J. H. Hart, U. S. Atty., of Nome, Alaska, for the United States.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

The appellant was convicted of murder in the first degree and sentenced to life imprisonment. He appeals from that judgment and relies upon certain errors occurring during the trial, but admits that the evidence was sufficient to sustain the verdict.

It is conceded that the defendant killed Joseph William Sparrow at 2 a. m., December 4, 1928, at Nome, Alaska. The defendant claims that the homicide was in necessary self-defense. It appears from the evidence that the defendant was engaged as an employee in a pool room and saloon in Nome, Alaska, and that his wife, who went by the name of Eva Thompson, was living separate and apart from him in Nome. Early on the morning of December 3, defendant visited the place kept by his wife and engaged in a row. The next day complaint was made to one of the peace officers of the city concerning the conduct of the defendant at the time and place in question. The prosecution claimed, and offered evidence sufficient to prove, if believed, that during the day of December 3 the defendant made inquiries to ascertain the name of the person who had complained to the peace officer concerning his conduct the night before; that he ascertained, or at least believed, that the deceased had given such information; and that thereupon he threatened dire vengeance. These threats, so far as they relate to the deceased, are denied by the defendant, who testified that on the evening of December 3, about 10 o'clock, the deceased visited him at the pool room and he and the deceased went outside the pool room. In the conversation or altercation which there occurred, so the defendant testified, the deceased complained to the defendant that he had heard of threats against him uttered by the defendant and that deceased thereupon threatened to kill the defendant. In the course of the conversation, according to the testimony of the defendant, deceased stated that he would visit the premises of said Eva Thompson as often as he wanted to and that if he met the defendant there, the "best man would win." Thereafter, on the same night, the defendant closed his premises, and, taking a revolver, went to the premises occupied by his wife to see if he could "bum something to eat." He arrived there about 2 a. m. He found the premises lighted, the inmates of the place dancing. He entered the storm shed and knocked on the front door. After knocking a second time an inmate named Marie White opened the door, and defendant entered. He further testified:

"Marie then put her arms around me and pushed me backwards, the door was opened and Marie pushed me against the door until the door swung back against a chair behind the door. She looked in my face and said `Huh.' I then saw Sparrow coming from towards the kitchen door. He had a claw hammer in his right hand. When he advanced to within two or three feet of me and had the claw hammer in a striking position I put up my hand and shot. I shot over Marie's shoulder. When I shot Sparrow the blow from the hammer was on the way. I certainly believed that my life was in danger."

This shot entered the body of the deceased and caused his death. According to the testimony of the defendant, after he fired the fatal shot he insisted upon the deceased putting down the hammer. This, he said, the deceased did, left the house, and died a short distance from the front door. According to the defendant, the fatal shot was fired within ten seconds after the door was opened by Marie White. The prosecution contends that the shooting was the result of the deliberate purpose of the defendant to punish the deceased for the alleged report to the peace officer, and the defendant concedes that the testimony of the prosecution was sufficient to justify this conclusion, if believed by the jury, but contends that the instruction given by the trial judge on the issue of self-defense was erroneous. The defendant requested an instruction to the general effect that he was entitled to stand his ground and resist an apparently dangerous assault by the deceased by the use of adequate force even to the extent of killing his opponent. The court declined to give this instruction and instructed the jury on that subject as follows:

"Before a person can avail himself of the defense that he used a weapon in defense of his own life, the jury must be satisfied from the testimony that the defense was necessary; that the defendant did all he could consistently with his own safety to avoid it and it was necessary to protect his own life or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger."

The court also, after setting forth the right of the defendant to defend himself to the extent of taking the life of his assailant, added this qualification:

"This general rule, however, must be taken with the qualifications that it is the duty of a person when attacked to retreat as far as the fierceness of the assault will permit."

The doctrine thus enunciated has been a source of difficulty in the law of self-defense, and the courts have taken two divergent views with relation thereto: One, the view thus taken by the trial judge; and, the other, the view that a person unlawfully assaulted can stand his ground and resist force by force, even to the extent of taking life, when that is necessary in order to enable the defendant to stand his ground without danger of great bodily harm or death. The Supreme Court in a recent case has been called upon to pass upon this mooted question. In Brown v. United States, 257 F. 46, the Circuit Court of Appeals had held that under the circumstances therein set forth, the rule applied in the case at bar by the trial judge was applicable. The Supreme Court reversed the decision of the Circuit Court of Appeals because of this erroneous conclusion and held that it was not the duty of the defendant to retreat before forcibly resisting the assault. Brown v. U. S., 256 U. S. 335, 41 S. Ct. 501, 502, 65 L. Ed. 961, 18 A. L. R. 1276. Of this rule the court said:

"Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceeded the bounds of lawful self defense. That has been the decision of this Court. Beard v. United States, 158 U. S. 550, 559, 15 S. Ct. 962, 39 L. Ed. 1086. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him. Rowe v. United States, 164 U. S. 546, 558, 17 S. Ct. 172, 41 L. Ed. 547. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068; Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106."

Two of the witnesses to the shooting agreed that the deceased had no hammer, made no assault, and was shot without warning by the defendant, who immediately upon entry closed the door and opened fire on the deceased, who was unarmed; nevertheless the defendant was entitled to have the jury weigh the credibility of his testimony as against the other witnesses under proper instructions from the court. The doctrine invoked by the defendant is necessarily based upon the proposition that the party who stands his ground, even to the extent of killing his assailant, has a right to be where he is (section 30, C. J. 71, note 47; People v. Maughs, 149 Cal. 253, 86 P. 187; Boykin v. People, 22 Colo. 496, 45 P. 419), and to assert that right against a wrongful assault which would invade that right. If he has no right to be or to remain where he is, and his assailant has a better right there, he should retreat to a place where he is entitled to assert his right to stand his ground, if the violence of the assault permits, before repelling force by force.

The instruction given by the court assumes as a matter of law that the defendant did not have a right to stand his ground and resist an assault made upon him. Whether or not under all the circumstances he had the right to stand his ground depends upon a conclusion of fact, which conclusion was one for the jury. There are facts in the evidence from which the jury might infer that there was an implied invitation to the defendant to enter the premises at the time and place in question, arising from his previous visits, from his relation to the inmates, and from the fact that the door was opened in response to his knock. On the other hand, there was evidence from which the jury might infer that the defendant was not a welcome guest, that an effort was being made to expel him from the house by those authorized so to do, and if the jury should conclude that such was the fact defendant would not be entitled to stand his ground and resist an assault made upon him for the purpose of expelling him from the house until he had retreated from the premises if the violence of the assault permitted him so to do without danger...