Lampe v. United States, 12551.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: EDGERTON, , and WILBUR K. MILLER and FAHY, Circuit
• Citation: Lampe v. United States, 229 F.2d 43, 97 U.S.App.D.C. 160 (D.C. Cir. 1956)
• Decision Date: 19 January 1956
• Docket Number: No. 12551.,12551.
• Parties: Virgil V. LAMPE, Appellant, v. UNITED STATES of America, Appellee.

97 US App. DC 160, 229 F.2d 43 (1956)

Virgil V. LAMPE, Appellant, v. UNITED STATES of America, Appellee.

No. 12551.

United States Court of Appeals District of Columbia Circuit.

Argued October 31, 1955.

Decided January 19, 1956.

Mr. Sidney S. Sachs, Washington, D. C. (appointed by the District Court), with whom Mr. Martin J. McNamara, Jr., Washington, D. C., (also appointed by the District Court) was on the brief, for appellant.

Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll and Edward O. Fennell, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and FAHY, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Virgil V. Lampe and Woodrow W. O'Bryan were jointly indicted for second degree murder and were tried together. O'Bryan was acquitted by the jury but Lampe was convicted of the crime charged and brings this appeal. He requests reversal principally because of his theory that the trial judge erroneously received in evidence three statements made to the police by the victim of the homicide.

The crime was committed July 16, 1954, in Barnard Hill Park in the District of Columbia near the Maryland line. The appellant, his acquitted co-defendant and Fred Lamar, the murdered man, had been in the park for a week or more engaged in a prolonged drinking spree, which was interrupted now and then by "panhandling" expeditions to get money for more wine. Finally, after days of debauchery, Lampe and O'Bryan concluded Lamar was a police informer and made a vicious attack upon him, beating him into insensibility.

Shortly after he regained consciousness, Lamar managed to leave the park and was standing near Eastern and Rhode Island Avenues at about 4:10 a. m. July 17, when he was seen by two police officers who were cruising in the area and who alighted to investigate. They said Lamar had been badly beaten, was breathing with difficulty, and appeared to be in a dazed condition. His speech was partly incoherent but understandable. When asked what had happened, Lamar said, "Get me to a hospital * * I have been beaten up by two men. * * Lampe and O'Bryan." This was the first of the three statements which Lampe urges were erroneously received in evidence.

The officers immediately went with Lamar to the nearby park, which he said was the scene of the attack, and there found Lampe and O'Bryan in a drunken sleep. They took the three men to a precinct station where, about forty minutes after they had first encountered him, Lamar made a second statement, which the appellant says was erroneously received in evidence. The officer's narration of it at the trial included the following: "He Lamar thought O'Bryan had hit him maybe once or twice, he wasn't sure, but he was very sure that they both had taken part in the beating, beating him up."

A third statement, the admission of which is complained of, was made by the victim to an officer in the hospital about 10:30 a. m. July 17. It is as follows:

"He Lamar said that O\'Bryan was a friend of his, that they had been drinking together, and I questioned him about this beating he had, and he stated O\'Bryan wasn\'t responsible for the beating, that O\'Bryan had only hit him once, and that was all, that he and O\'Bryan were good friends."

Lamar died of his injuries shortly before midnight July 18 and on the morning of the following day, July 19, O'Bryan and Lampe signed written confessions which were received in evidence. O'Bryan's statement sought to minimize his own participation in the assault and his attempted exculpation of himself was corroborated to some extent by Lampe's confession, from which we quote:

"For the past two weeks Lamar, O\'Bryan and I have been laying up in Barnard Hill Park, drinking.

"Around about 7:15 a. m., July 16, 1954, while I was on Rhode Island Avenue in Maryland I met O\'Bryan. He told me that he was gonna get a pint of wine and that Fred Lamar was laying up in the woods. I gave O\'Bryan a quarter and said let\'s get a fifth. We went and got a fifth of wine and then went up in Barnard Park, where Fred was and we all drank it.

"Then O\'Bryan and me left and went panhandling up the street — way up to Woodridge on Rhode Island Avenue and we got over two dollars. Then we went and bought a half gallon of wine and went back to the park where Fred was. We layed around and drank up most of the half of gallon of wine.

"It was getting towards evening and I told Fred that he ought to spring for a half gallon of wine. That\'s when we got in a little argument, I guess, about Fred drinking more than his share. Then Fred gave me two dollars and I gave it to O\'Bryan and O\'Bryan went and got another half gallon of wine. I stayed up there with Fred. We was laying on the ground. O\'Bryan came back with a half gallon of wine and we drank almost all of that half gallon. Then trouble started between Fred and me. We started arguing again about the wine. Then I accused Fred of being a police pimp because everything happened around there the Mt. Rainier police was right behind us and I figured that Fred was telling them.

"All three of us was sitting on the ground together. I was sitting next to Fred, he was on my right and Fred hauled off and hit me in the left side of my chest with his fist. I grabbed him around the neck with my bad arm and then I hit him three or four times with my other hand. Then O\'Bryan got into it and said that he would get in a couple of licks too. * * *"

Lampe's counsel objected to the admission of the confession "on the ground that the man was incompetent to dictate it." Thereupon the court heard evidence on that subject in the absence of the jury, after which the jury was recalled and heard six witnesses as to Lampe's condition when he confessed. The trial judge carefully charged the jury to decide for itself whether the confession was voluntary, not only as to Lampe's competency to make it, but also in all respects. The appellant did not argue here that his confession was erroneously received.

Uncontradicted evidence developed at the trial, including Lampe's admissions and his testimony from the stand,¹ showed beyond doubt that Lamar had been fatally beaten by Lampe...