Mumforde v. United States

• Citation: 130 F.2d 411,76 US App. DC 107
• Decision Date: 29 June 1942
• Docket Number: No. 7992.,7992.
• Parties: MUMFORDE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

76 US App. DC 107, 130 F.2d 411 (1942)

MUMFORDE v. UNITED STATES.

No. 7992.

United States Court of Appeals for the District of Columbia.

Argued June 8, 1942.

Decided June 29, 1942.

Writ of Certiorari Denied October 12, 1942.

Mr. George E. C. Hayes, with whom Mr. Leonard S. Hayes was on the brief, both of Washington, D. C., for appellant.

Messrs. William Hitz and Charles B. Murray, Assistant U. S. Attorneys, with whom Mr. Edward M. Curran, U. S. Attorney, all of Washington, D. C., was on the brief, for appellees. Mr. Dennis B. McCarthy, Assistant U. S. Attorney, of Washington, D. C., also entered an appearance for the appellees.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

Writ of Certiorari Denied October 12, 1942. See ___ U.S. ___, 63 S.Ct. 53, 87 L.Ed. ___.

GRONER, C. J.

Appellant was convicted of murder on an indictment charging that he had unlawfully and feloniously killed one Fanny Cohen, while attempting to perpetrate robbery. The killing occurred in the District of Columbia, the 15th of February, 1941. Appellant fled to North Carolina, was arrested there, and brought back to the District in the latter part of March following. Two or three days later he made a voluntary confession to the police, in which he stated that on the night in question he had walked into a store on U Street operated by the deceased, with "my hand in my overcoat pocket on the gun", intending "to get some money". "I figured I would * * * hold her up and she would give me the money * * *". As he got inside, Miss Cohen "must have seen the imprint of the gun", as she started toward the door, screaming. "I pulled my gun and fired one shot at her * * *. She fell right down at my feet. I bent down and started to go through her pockets, then I broke and ran out of the door".

At the trial an eye witness testified that as appellant entered the store Miss Cohen walked toward him, and as she approached "he reached and grabbed her and turned his back to the door. She threw up her hands and screamed and the man seemed to turn her around and pulled the gun out and shot her, and then he grabbed the door with his left hand. Just before that he reached over her body and grabbed at something. The man pulled the door open and broke the mirror behind the door and then pulled the door shut and walked up the street to the alley".

At least half a dozen other witnesses, some white, some colored, testified that at various times between the shooting and the trial appellant had stated, either to them or in their presence, that he went into the Cohen store with the intention of committing robbery and that while there shot and killed Miss Cohen. On the trial appellant explained the circumstances of the killing as follows: "Upon entering the place I had the intention of robbing it, but after getting inside the place I abandoned all ideas of robbing it and started to proceed out of the place. A lady made a break at me screaming and since I had started out I wished to continue without having any trouble for anything I had not done; so I yanked the gun with the intention of stopping her screaming so I could pass out peacefully and as I snatched the gun it went off. I had no intention to shoot her."

He said he had taken the gun from the home of another colored man and had bought the bullets the day of the killing.

We have no manner of doubt that the evidence justified the jury's verdict and that any other disposition of the case would have made a mockery of justice. The applicable statute in the District of Columbia¹ defines murder in the first degree as the killing of another while armed with or using a dangerous weapon in the perpetration or attempted perpetration of a robbery. As the statute was a few years ago, it was necessary to show that the killing was done "purposely" to raise the offense to first degree murder. See Jordon v. United States, 66 App.D.C. 309, 87 F.2d 64. In June, 1940, Congress, at the request of the Attorney General, amended the law so that it now provides that the offense is perpetrated even when the killing is "without purpose so to do". Thus, the statute is brought into line with those of many of the States, where a killing committed in an attempted burglary or robbery is declared to be murder in the first degree, and it has been held in those States that the offense is complete even though there was no intent or desire to kill. People v. Smith, Sup., 187 N.Y.S. 836, and State v. McNeal, Mo.Sup., 237 S.W. 738, are typical.

Appellant, as we have seen, testified that he entered the Cohen store with the definite purpose of committing robbery, but that a moment later, as the woman in charge began to scream, he changed his mind and drew the pistol from his pocket, hoping to quiet her and thus to escape detection and arrest, but in the excitement of the moment the pistol was unintentionally discharged and the woman killed. In this account, as wholly different from his confession as it was different from the testimony of the only eye witness, he attempts no explanation of his change of purpose, nor recites a single fact to show an effort to put it into effect. The entry and the killing, as he testified, were simultaneous.

"Whatever may be the other requirements of an effective abandonment of a criminal enterprise, it is certain both as a matter of law and of common sense that there must be some appreciable interval between the alleged abandonment and the act from responsibility for which escape is sought. It must be possible for a jury to say that the accused had wholly and effectively detached himself from...