Giles v. United States, 10668.

• Decision Date: 25 September 1944
• Docket Number: No. 10668.,10668.
• Citation: 144 F.2d 860
• Parties: GILES v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F.2d 860 (1944)

GILES v. UNITED STATES.

No. 10668.

Circuit Court of Appeals, Ninth Circuit.

September 25, 1944.

Harry G. McCain, of Ketchikan, Alaska, for appellant.

Lynn J. Gemmill, U. S. Atty., Division No. 1, Robert L. Jernberg and Robert L. Tollefsen, Asst. U. S. Attys., all of Juneau, Alaska, and J. Charles Dennis, U. S. Atty., of Seattle, Wash., for appellee.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment sentencing appellant to serve a five year term in the penitentiary for the crime of negligent homicide in violation of Section 4764, C.L.A., 1933, providing as follows:

"Sec. 4764. Negligent homicide. Every killing of a human being by the culpable negligence of another, when such killing is not murder in the first or second degree, or is not justifiable or excusable, shall be deemed manslaughter, and shall be punished accordingly."

The evidence shows that appellant, who had been drinking, was in his dwelling, seated on his bed, with a powerful hunting rifle over his knees, the loading mechanism of which he was manipulating and explaining to a friend, who was about to go on a hunting expedition. In that operation the brass cartridge would be visible to appellant before the mechanism was closed to a position where the trigger could be pulled. His dwelling was a two-room apartment consisting of the bedroom in which the two men were examining the rifle and a kitchen adjoining. Appellant's wife was in the kitchen, where she came in the line of a bullet discharged from the rifle. The husband, looking down at the loading mechanism, pulled the trigger, the rifle was discharged and its bullet passed through his wife's legs causing an injury from which she died. There is no evidence of an intent to kill or that appellant flourished the rifle or pointed it in her direction.

Appellant assigns as error that the district court failed to give an instruction on Section 4776 of Chapter 39, S.L.A. 1935, as an included offense. That section provides:

"Section 4776. Pointing firearms at and discharging the same and injurying thereby. Whoever intentionally, and without malice, points or aims any firearm at or toward any person, or discharges any firearm so pointed or aimed, or who points and discharges any firearm at or toward any person or object without knowing, the identity of such object and thereby maims or injures any human being, shall be guilty of the careless use of firearms and, upon conviction, shall be fined not more than One Thousand Dollars, or imprisoned, not more than one year, or both so fined and imprisoned, and if death ensue from such maiming or injuring the person discharging such firearm may, in the discretion of the prosecuting officer or grand jury, be charged with the crime of manslaughter. This section shall not extend to any case where firearms are used in self defense or in...