Kenion v. Gill, 9189.

• Decision Date: 22 April 1946
• Docket Number: No. 9189.,9189.
• Citation: 155 F.2d 176,81 US App. DC 96
• Parties: KENION v. GILL, Superintendent, D. C. Penal Institutions.
• Court: U.S. Court of Appeals — District of Columbia Circuit

81 US App. DC 96, 155 F.2d 176 (1946)

KENION v. GILL, Superintendent, D. C. Penal Institutions.

No. 9189.

United States Court of Appeals District of Columbia.

Argued March 26, 1946.

Decided April 22, 1946.

Messrs. Harry T. Whelan and Herbert P. Leeman, both of Washington, D. C., for appellant.

Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, and Mr. George E. McNeil, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.

PRETTYMAN, Associate Justice.

Appellant was indicted in December, 1944, for murder. Upon the trial he was represented by experienced counsel of his own choice and employment. He was found guilty of murder in the second degree and sentenced to imprisonment. A motion for a new trial was made and denied. No appeal was taken, and the time within which appeal might have been taken expired. Thereafter, by other counsel, he filed his petition for a writ of habeas corpus. The District Court denied the writ, and this appeal was taken from that order.

Appellant contends that the charge to the jury by the trial court was so inadequate and prejudicial as to deny him due process of law, and that by such denial the court lost jurisdiction to enter judgment. The contention must be examined in the light of the facts shown by the record.

Appellant shot and killed one Russell. A few hours prior to the shooting, appellant's wife and Russell had a dispute over a debt, and the wife testified that Russell then threatened to kill appellant and that she communicated that threat to appellant. The shooting occurred in a house on Neal Place, not the residence of appellant or the deceased but apparently a meeting place for residents in the neighborhood. The testimony for the Government was that appellant came into this house with a shotgun. Facing the front door, he sat down in a chair in the kitchen with the gun across his lap. A few minutes later Russell entered the front door. Appellant exclaimed, "Oh, no, you won't. You are not going to get me."; or "I am going to get you before you get me." He then shot Russell. The testimony for the defense was that Russell was a man of bad reputation; that he had assaulted several people in the neighborhood; that he had threatened appellant that morning; that appellant and some of his friends had planned to go hunting in a few days, and that one friend had told appellant to bring his shotgun to the shop to be oiled. Appellant testified that while he was en route from his own home to the shop with the gun, he met Russell face to face in front of the house on Neal Place and turned into the house to avoid him; that in a few minutes Russell entered the house, drew a pistol from his pocket and made a motion as if to shoot appellant; that appellant threw up his arms, "and the gun went off." Appellant also presented testimony to show his own good reputation. Although there were two witnesses to the shooting, and several others arrived on the scene immediately thereafter, no pistol was seen by any witness either before or after the shooting.

Thus, the sole defense was self-defense, and counsel for appellant so told the court and the jury. Some discussion took place between the court and counsel, in the absence of the jury, as to whether, upon the evidence, the court should instruct on manslaughter. Two opinions of this court were discussed.¹ Upon request by appellant's counsel, the court told the jury that if they believed the accused was guilty, but not of first-degree or second-degree murder, they might return a verdict of manslaughter.

After delivering its instructions, the court inquired whether counsel had any further request. Counsel for appellant suggested a further statement on manslaughter, and the court offered to instruct by definition, which would necessarily include reference to heat of passion. Counsel for appellant said, "No. You are right, your Honor.", and the court commented, "If I told them that, it might ruin your chances somewhat." Counsel for appellant then asked for further instruction on the burden of proof, and the court repeated the instruction on reasonable doubt. No further request was made by counsel, and no exception to the charge was taken.

The question before us is whether, in that setting of facts, the charge to the jury was so inadequate as to constitute a denial of due process of law.

The charge to the jury was short and omitted many refinements in definition and instruction which are customary in the federal courts in capital cases. Mere errors in the charge, however, do not constitute sufficient basis for grant of habeas corpus. The inadequacy prerequisite to that writ must consist of the omission of essentials to such an extent that the accused is denied a fair trial in the Constitutional sense. It is in that light that we must examine the charge.

The court instructed the jury that before they could convict, they must find the accused guilty beyond a reasonable doubt; that until a case is finally submitted to the jury, the presumption is that the accused is innocent; that evidence of good reputation may be sufficient to create a reasonable doubt. The court instructed that if the jury believed beyond a reasonable doubt that the accused got his gun and lay in wait to kill the deceased, and did kill him, they would be justified in bringing a verdict of murder in the first degree; that if the intention to kill was an instantaneous thing, not deliberate, they would be justified in a verdict of murder in the second degree or of manslaughter; that if they believed that the accused had reasonable grounds to fear, and actually did fear, for his life or that grievous bodily harm would be inflicted upon him, that if they believed the deceased either had a gun when he came into the house or that the accused was so frightened that he thought the deceased had a gun, they would be justified in finding the defendant not guilty; because, said the court, "a man has a right to protect himself from death and grievous bodily harm." The court read to the jury the pertinent part of the statutory definition of murder in the first degree and gave them a definition of malice. As to manslaughter, the court told the jury that there is no statutory definition in this jurisdiction, the District of Columbia being left to the common-law definition, and that if they thought the accused was guilty, but not guilty of murder in the first degree or in the second degree, they could return a verdict of manslaughter. The court concluded by repeating the instruction on self-defense. Then occurred the colloquy at the bench to which we have referred, and the repetition of the instruction on reasonable doubt.

Although the court told the jury that in order to convict they must be persuaded of guilt beyond a reasonable doubt (the...