Parlton v. United States

• Decision Date: 04 February 1935
• Docket Number: No. 6176.,6176.
• Citation: 75 F.2d 772,64 App. DC 169
• Parties: PARLTON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 169, 75 F.2d 772 (1935)

PARLTON et al. v. UNITED STATES.

No. 6176.

United States Court of Appeals for the District of Columbia.

Argued January 7, 1935.

Decided February 4, 1935.

P. H. Marshall and Frederick J. Rice, both of Washington, D. C., for appellants.

Leslie C. Garnett, U. S. Atty., and H. L. Underwood, both of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellants were convicted of arson and sentenced to imprisonment in the penitentiary. They have appealed, and assign numerous alleged errors occurring in the trial of the cause, which they claim entitle them to a reversal of the judgment.

The United States, acting through the Attorney General, has filed a confession of error in respect to appellants' assignments Nos. 7 and 8. The Attorney General also submitted a written statement, in which he tells us he has personally reviewed the record and evidence and has confirmed his conclusions by a supplemental investigation of various phases of the case, as the result of which he does not feel justified in asking that the judgment be affirmed.

In the circumstances, we were in some doubt if it was incumbent upon us to look into the record with a view of forming any judgment of our own whether there be error or not. We have therefore examined the cases as fully as possible in the time available, to ascertain the views of other courts where the question has arisen. We find that in England in the trial of John Wilkes, Lord Mansfield, referring to the case of Lord Griffin, charged with outlawry for high treason, said that Sir Philip Yorke, the Attorney General, came into court and said he had a sign manual "to confess the errors and consent to the reversal." The court told him, "his confessing an error in law would not do: they must judge it to be an error," for their judgment would be a precedent. 4 Burrows 2527, 2551.

In the Supreme Court the question seems never to have been discussed, although in Fauntleroy v. Elmer Candy Co., 278 U. S. 664, 49 S. Ct. 177, 73 L. Ed. 570, and in Lillian Weare v. United States, 276 U. S. 599, 48 S. Ct. 321, 72 L. Ed. 724, the former a civil and the latter a criminal case, a reversal was ordered on a confession of error by the Solicitor General; and the rule in the state courts is not uniform. In Washington state, Oklahoma, Illinois, North Carolina, and Missouri the opinion is expressed that the record should be looked into. See State v. Green, 167 Wash. 266, 9 P.(2d) 62; Bindrum v. State, 27 Okl. Cr. 372, 228 P. 168; People v. Mortenson, 224 Ill. App. 221; State v. Stevens, 153 N. C. 604, 69 S. E. 11; State v. Goddard, 146 Mo. 177, 48 S. W. 82.

In California, Colorado, and Iowa the conclusion reached is that the filing of a confession justifies a reversal without more. People v. Lewis, 127 Cal. 207, 59 P. 830; Zancannelli v. People, 63 Colo. 252, 165 P. 612; State v. Hogan, 85 Iowa, 712, 50 N. W. 880. But see People v. Mooney, 175 Cal. 666, 166 P. 999; Id., 176 Cal. 105, 167 P. 696, in which a confession of error by the Attorney General was held insufficient.

In this case we have no doubt of the propriety of the action taken by the Attorney General. Nor do we think it can be questioned that he has the power, as the representative of the government, to confess error in any case in which he is satisfied the ends of justice demand it. The power is inherent in the office. Here, as he tells us, he has caused an independent investigation to be made which satisfies him the defendants are innocent of the crime of which they were convicted. In that case it was manifestly his duty to confess error. The public interests and the principles of justice would be satisfied with nothing less; but even so, we cannot, as we think, alone on the strength of his official action acquit ourselves of our responsibility to examine the whole record before setting aside a conviction for crime. The question, as we think, is wholly different from that which would arise in a litigation between private parties, where no public interest is involved. In this view, we feel impelled to review the errors alleged.

Appellants at the time of the fire were members of a college fraternity and resided in the fraternity house in the city of Washington. At 4:20 a. m. of July 9, 1933, the fire was discovered and the alarm sounded. The city fire department succeeded in extinguishing the fire before very great damage was done, and it was then ascertained that the fire had started in the hallway and living room on the first floor, and also in an upper bedroom in which defendants lived. The evidence tending to connect defendants with the crime consisted of (a) evidence regarding the nature of the fire as one started by the use of gasoline; (b) an alleged purchase of gasoline by the defendants before the fire; and (c) identification of a milk can found on the premises where the fire occurred as the can in which defendants are alleged to have carried the purchased gasoline. No witness testified to seeing either defendant at the fraternity house after 7:30 p. m. of the day preceding the fire, but a witness employed temporarily at a gasoline station identified defendant Parlton as one of the two young men who had purchased ten gallons of gasoline in a milk can between 1 and 4 o'clock on the morning of the fire and taken it away in their automobile. Another of the attendants at the gasoline station, though unable to identify either defendant as the purchaser of the gasoline, identified the can found on the premises as the can into which the purchased gasoline was put, and the same witness identified the defendant Smith's Chevrolet car as the one which he saw at the service station when the gasoline was purchased.

That the fire was incendiary, and that it was started by the use of gasoline, was convincingly proved. An attempt was made to prove motive; as against the defendant Smith, that as treasurer of the fraternity he was short in his accounts and that the fire in his room was intended to destroy the evidence of his shortage, and as to the defendant Parlton, that his "pledge" to the fraternity had not been consummated by actual election and that during the period of his pledgeship he had not commended himself to some of the members of the fraternity. The evidence in the case of Parlton was vague and insufficient as a motive for such a crime. In the case of Smith there was an actual shortage in his accounts of approximately $75, but even as to this it was shown that part of the money had been, following a more or less common custom, loaned to other boys in the fraternity.

Defendants took the stand in their own behalf and denied all connection with or knowledge of the fire. They testified they left the fraternity house in an automobile belonging to defendant Smith around 8 o'clock in the evening of July 8, and did not return until the next evening about 9. They went first for a young lady with whom one of them had an engagement, and then drove with her to Rockville, Md., where they were joined by another young lady. From Rockville they drove in the direction of Frederick, and thence back to the home of one of the young ladies in Rockville. Then the two defendants and the other young lady drove back to Washington. After delivering the latter at her home, defendants Smith and Parlton went immediately to an all night restaurant on Fourteenth street near Thomas Circle, where they had something to eat. It was then around 3 o'clock. Up to this point the facts, as we have stated them, are undisputed. While at the restaurant, Parlton reminded Smith of a broken engagement the preceding Sunday with a young lady living in New Freedom, Pa., and suggested that they start for New Freedom, go to a hotel, get a little sleep, and then make good their broken engagement. They testified that, in accordance with this program, they left Washington via Rhode Island avenue, and thence on the Baltimore Pike to Baltimore. In Baltimore they stopped at a filling station to buy ten gallons of gasoline for use in the car. After driving through Baltimore, they continued north on the York road in the direction of New Freedom, and, when a short distance outside of Baltimore, the engine of the automobile developed trouble; and they were obliged to slow down until they reached Gunpowder Falls bridge, 67.8 miles from Washington, where they parked their car and left it, intending to reach a telephone to obtain a mechanic to repair the engine. Close to the bridge was a small inn kept by Mr. and Mrs. Schultz. They knocked on the front door of the inn, and Mrs. Schultz, who was wakened by the knocking, came to the window. Smith requested permission to use the telephone, and Mrs. Schultz replied there was no telephone in the house, but informed him there was a garage in Hereford, two miles back in the direction from which they had come. Upon receiving this information, Parlton returned to the car and Smith started to walk back in the direction of the garage, but after he had gone a short distance he was picked up by the driver of a passing automobile, and reached the Hereford garage just as Winemiller, the owner, was opening the place for business. At Smith's request Winemiller borrowed a neighbor's car and drove with Smith to Gunpowder Falls bridge. The two defenda...