Murray v. United States

• Citation: 288 F. 1008
• Decision Date: 03 April 1923
• Docket Number: 3800.
• Parties: MURRAY v. UNITED STATES. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

288 F. 1008

MURRAY v. UNITED STATES. ^[1]

No. 3800.

United States Court of Appeals, District of Columbia.

April 3, 1923

Submitted November 6, 1922.

Appeal from the Supreme Court of the District of Columbia. [Copyrighted Material Omitted]

H. S Barger, of Washington, D.C., for appellant.

Peyton Gordon and J. H. Bilbrey, both of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BARBER Judge of the United States Court of Customs Appeals.

BARBER Acting Associate Justice.

This is an appeal brought by the defendant below to reverse a judgment and sentence of 10 years imposed upon him following a verdict of guilty of manslaughter. The indictment is in two counts. The first in substance charges that the defendant on the 15th day of October, 1921, feloniously, willfully, and violently made an assault upon his wife, Estelle Murray, and that in making it he feloniously, willfully, and violently knocked her down, and in so doing gave her a violent mortal blow which caused her death. The second also charges a felonious and willful assault on his wife with a certain hard blunt instrument, a more particular description of which the grand jury could not give, and that she was killed by a blow with such instrument.

The defendant and his wife were at the time of her death living together at 25 Fenton street, in Washington. On the night of October 15, 1921, her dead body was found on the floor in one of the rooms in defendant's house. Her head was lying partially between the rockers of a rocking chair. There was blood on the floor near the head, and when first discovered defendant was washing or bathing her head. Defendant and his wife had been alone in the house, or near it, from about 7 o'clock of the evening of that day, and he was the only person there when his wife's body was found. There was some evidence tending to show there was a stain that looked like blood on the end of one of the rockers. There was a wound on deceased's head, more particularly hereinafter described, which caused her death, and there is no question as to the identification of the body. Defendant was arrested in another part of the city about 4:30 o'clock the following morning. The testimony as to other relevant facts will be referred to in connection with the consideration of the various assignments of error.

1. Error is alleged in permitting an expert medical witness to state, from his examination of the wound, what in his opinion caused it. The witness, Dr. Prentiss, who was called by the government, had testified that he performed the autopsy on the body of the decedent; that there was a small abrasion on the back of the left hand and a lacerated wound on the right temple, two inches above the external auditory canal, the wound being about one inch and three-quarters long extending downward and upward; that the skull was fractured in that region, a rather large triangular piece of bone being loose at the base of the wound; that the wound was lacerated beneath that, and that in his opinion the fracture of the skull and hemorrhage caused her death. He was then asked if he had made sufficient examination to form an opinion as to the cause of the wound. Defendant's counsel objected, on the ground that the question called for the mere conjecture of the witness and was entirely too broad. The answer, taken subject to defendant's exception, was:

'It was caused by some blunt instrument. A flat instrument could not knock out a triangular piece of bone and indent that end of the brain in the region covered by the laceration.'

We see no error in the admission of this testimony. To indulge in any extended review of the cases on the subject of expert testimony would unwarrantably lengthen the opinion.

It is urged that the question called for the mere guess or conjecture of the witness, and that the answer invaded the province of the jury. How the wound was produced was a vital issue, and the opinion of a qualified expert was admissible as aiding the jury to find the fact. Because the jury were to find the fact did not render the evidence inadmissible. Hopt v. Utah, 120 U.S. 430, 7 Sup.Ct. 614, 30 L.Ed. 708; Transportation Line v. Hope, 95 U.S. 297, 24 L.Ed. 477; Wigmore on Evidence, vol. 3, Secs. 1921-1923; Atchison Co. v. Myers, 63 F. 793, 11 C.C.A. 439; American Agricultural Chemical Co. v. Hogan, 213 F. 416, 130 C.C.A. 52.

In his further testimony Dr. Prentiss gave a full explanation of the reasons why he concluded that the wound was caused by some blunt instrument. His opinion as to the cause of death and how the wound was produced was fully corroborated by another expert medical witness, who was present at the autopsy, whose testimony was received without objection.

Defendant also urges here that the form of the question was objectionable. It is sufficient to say that no objection as to form was made at the time the evidence was received.

2. A witness for the government testified that he lived at 27 Fenton street, which was separated from defendant's house by a 10-foot alley, and that sometimes defendant and his wife had family troubles. The government's attorney claimed surprise in the witness' testimony, and for that reason without objection proceeded to cross-examine him. Among other things, the attorney asked the witness if he had not very recently told him that he knew these people and had often seen them fight? To which he answered in substance that he had told the attorney that last summer they had their little troubles. To this evidence the defendant's attorney seasonably objected, on the ground that it was too remote. The court overruled the objection, saying that the question of remoteness was for the jury. We see no error in this. Evidence as to the conduct of the defendant toward his wife and their relations was admissible on the question of motive.

Lomax v. United States, 37 App.D.C. 414; Moore v. United States, 150 U.S. 57, 14 Sup.Ct. 26, 37 L.Ed. 996; Thiede v. Utah Territory, 159 U.S. 510, 16 Sup.Ct. 62, 40 L.Ed. 237.

The question of remoteness really goes to the weight to be given to the evidence by the jury and that was for them to determine.

3. Error is claimed in allowing Police Officer King to testify to a conversation he had with defendant on the morning of October 16th, while in his custody shortly after he was arrested. The officer had testified that he went to defendant's house before midnight, looked the house and yard over to see if he could find an instrument which might have caused the wound, that he found none, and that he and another officer then went to another place in the city, where they found and arrested the defendant. He was then asked the question:

'You may state whether or not he (defendant) made any statement to you at that time, and, if so, what did he say?'

The defendant's counsel then made the following objection:

'I do not think the government has shown the corpus delicti with sufficient certainty to warrant the reception of any statement or declaration or admission by the defendant. I think, in the exercise of a sound discretion by the court as to the order of proof, that they should be required to go further before confessions or such statements by-- '

This objection was overruled, and exception allowed. The witness answered:

'We asked him if he had any trouble with his wife. He said, 'Yes."

Defendant's counsel then said:

'One thought further, if I may at this time, if your honor please. I think particular foundation should be laid for the introduction of a statement by the defendant.'

To this the court replied:

'No foundation is necessary. You may start to cross-examine him, and find out the circumstances, if you want to.'

Counsel for defendant said:

'I thought you might want to qualify him.'

Without further objection the witness then proceeded to state in substance that the defendant then said he and his wife had had some trouble in the earlier part of the night; that she wanted to go out, and he did not want her to; that they quarreled about it; that she had an old case knife in her hand and was going to cut at him, and broke the blade off; that he had the blade and she the handle; that later he started toward the door; she acted as if she were going to strike at him; that he struck her and knocked her down; that he went to the front door and stayed a while; that she did not say anything or make any fuss; that he called to her and she did not answer; that he then examined her and found blood, got a lamp, found her bleeding, got a basin of water, and washed her head. The officer said he asked defendant if he struck her with an instrument, or hatchet, or anything like that, and he said:

'No; she must have got the wound on her head when she fell.'

It is argued that this evidence was inadmissible (a) because in the exercise of a sound discretion the court should have required the government to prove the corpus delicti before it was received; and (b) because the government was not required to show as a condition precedent to its admission that the defendant's statement was voluntarily made to the witness. The order in which the evidence in a criminal case may be received is largely in the discretion of the court, and it frequently happens that evidence tending to establish the corpus delicti also tends to show the defendant's criminal agency.

In the case at bar decedent's death had been established. Evidence had been received tending to show that for months before then defendant and his wife had quarreled and fought as one witness said, 'plenty of times'; that about two weeks before her death he had been out looking for her, saying he could not find her, and that 'if she kept on he would kill her'; that after 11...