Green v. United States, 12188.
Decision Date | 20 January 1955 |
Docket Number | No. 12188.,12188. |
Parties | Everett D. GREEN, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. George Blow (appointed by this court), Washington, D. C., for appellant.
Mr. Lewis Carroll, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and Thomas A. Flannery, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.
Before WILBUR K. MILLER, PRETTYMAN and DANAHER, Circuit Judges.
In the first count of an indictment, Everett Green was charged with arson.1 In the second, the grand jury alleged that the death of an elderly woman, Bettie Brown, resulted from the fire set by Green, and so accused him under § 22-2401, D.C.Code (1951),2 which defines the unpurposed killing of another in perpetrating arson as murder in the first degree.
In submitting the case to the jury under the second count, the trial judge instructed on both first and second degree murder. Found guilty of arson under the first count and of murder in the second degree under the second count, Green appeals only from the latter.
He says it was error to instruct the jury on second degree murder; that the verdict of guilty under that instruction shows the jury was unwilling to find him guilty of murder in the first degree; that, therefore, had the erroneous second degree instruction not been given, he might well have been acquitted under the second count of the indictment. Thus, the sole question on this appeal is whether the trial judge erred to appellant's prejudice in instructing the jury on second degree murder.
Whether it was error to give that instruction depends on whether there was evidence to justify it; for we have held that under an indictment charging first degree murder done during the perpetration or attempted perpetration of one of the felonies enumerated in § 22-2401, the defendant may, if the evidence warrants it, be found guilty of the necessarily included offense of murder in the second degree.3
The first degree murder section of the District of Columbia Code, set forth at length in footnote 2, supra, enlarges the common law definition of that crime by adding thereto, inter alia, the unpurposed killing of another in perpetrating arson. So, when the evidence at a trial tends to show the defendant committed arson, and that the fire was the sole cause of the victim's death, the defendant is either guilty of murder in the first degree or he is not guilty.
In the present case, the only evidence as to the cause of the victim's death was that of Dr. Richard M. Rosenberg, Deputy Coroner of the District of Columbia, who performed an autopsy on the body of the victim, Bettie Brown. He testified in part as follows:
Dr. Rosenberg amplified the foregoing rather extensively in his testimony given under cross-examination by appellant's counsel, a part of which we quote:
The quoted testimony, which was undisputed, shows beyond peradventure that Bettie Brown's death was caused by the fire in the house in which her body was found. There was ample evidence to the effect that the appellant set the fire. We said in the Goodall case, 86 U.S.App. D.C. at page 151, 180 F.2d at page 400, "All the testimony as to what occurred at the drug store pointed to murder in the first degree and nothing else." And so we there held that the question whether there had been only second degree murder should not have been submitted to the jury, and that Goodall was treated more favorably than he deserved when it was submitted.4
In the present case, as in the Goodall case, all the testimony as to what occurred in the burning house pointed to murder in the first degree...
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