Turberville v. United States

• Citation: 303 F.2d 411,112 US App. DC 400
• Decision Date: 01 February 1962
• Docket Number: No. 16343,16344,16392.,16343
• Parties: Eugene E. TURBERVILLE, Appellant, v. UNITED STATES of America, Appellee. Bernard T. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. James H. SIMPSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

112 US App. DC 400, 303 F.2d 411 (1962)

Eugene E. TURBERVILLE, Appellant, v. UNITED STATES of America, Appellee.

Bernard T. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

James H. SIMPSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16343, 16344, 16392.

United States Court of Appeals District of Columbia Circuit.

Argued October 3, 1961.

Decided February 1, 1962.

Petition for Rehearing Denied March 19, 1962.

Certiorari Denied June 25, 1962.

Mr. Albert Noble McCartney, Washington, D. C. (appointed by this court), for appellant in No. 16343.

Mr. Joseph D. Bulman, Washington, D. C. (appointed by this court), for appellant in No. 16344.

Mr. John E. Powell, Washington, D. C. (appointed by this court), for appellant in No. 16392.

Mr. Donald S. Smith, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., Mr. Charles T. Duncan, Principal Asst. U. S. Atty., and Mr. Thomas A. Flannery, Asst. U. S. Atty., were on the brief, for appellee. Mr. Abbott A. Leban, Asst. U. S. Atty., also entered an appearance for appellee in No. 16344.

Before PRETTYMAN, WASHINGTON and BURGER, Circuit Judges.

Petition for Rehearing En Banc in 16343 Denied En Banc March 19, 1962.

Certiorari Denied June 25, 1962. See 82 S.Ct. 1596.

PRETTYMAN, Circuit Judge.

On the evening of December 5, 1959, two men and a woman were sitting beside a fire in front of an unoccupied shack on a vacant lot in the Southwest section of Washington. Three men came upon the lot and launched a vicious assault upon them. As a result of the savage attacks, one of the men already on the lot, Ollie Bowman, was beaten to death; the second was beaten and burned; and the woman was raped, beaten and burned.

The appellants here, Turberville, Simpson and Williams, were arrested and indicted for first degree murder, felony murder, assault with intent to commit rape, assault with intent to commit mayhem, assault with a dangerous weapon, and mayhem.¹ They entered pleas of not guilty and were tried by jury. Each was convicted of second degree murder under the first degree murder count. Each was sentenced to life imprisonment with a minimum of fourteen years.² Their appeals were consolidated.

A total of fourteen points are raised. We shall discuss ten. We find the remaining contentions of error to be without merit.

1. Appellant Simpson says the evidence does not sustain his conviction of murder in the second degree. He relies upon the fact that no evidence was presented showing that he participated physically in the assault upon the deceased Bowman. Testimony showed that Turberville and Williams actually beat and kicked Bowman.³ The prosecution was not required to make such an affirmative showing about Simpson, if he was properly charged as a principal under Section 105, Title 22, of the D. C. Code. That section provides in part: "In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, * *." The jury was instructed on that section. Under it, where defendants are charged as principals, the act of one defendant is the act of each.⁴

On the witness stand Simpson admitted that he was present at the affray, that he hit the man Lucas, and that he tried to have intercourse with the woman. The man Lucas testified that Simpson stuck burning sticks of wood in his eyes. Thus there is no doubt that Simpson participated actively in the assault on the two men Bowman and Lucas. The fact that the victim beaten by Turberville died and the man beaten by him (Simpson) did not, does not lessen Simpson's liability for advising, inciting, conniving, aiding or abetting in the homicide. The law on the point is well settled. As Wharton states it:

"All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. * * * In such cases of confederacy all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design."⁵

The cases he cites go back to Hale's Pleas of the Crown. 1 Hale P.C. 439.

We conclude that the jury's verdict was amply supported by the evidence.

2. Appellant Simpson argues that the trial judge erred in refusing to grant his motion for a directed verdict of acquittal by reason of insanity, and that the jury was not justified in finding that the Government had proved beyond a reasonable doubt that appellant was not suffering from a mental defect.

Simpson's insanity defense rested upon the results of two intelligence tests and the testimony of one of his public school teachers. In 1953, when he was fourteen years old, Simpson's score on a test administered to him by the Public School System of the District of Columbia showed that he had an I. Q. of 67 and a mental age of just over nine years. In 1958 he was rejected for military service because he scored in the lowest mental group on the Armed Forces Qualification Test.

The Moore⁶ and Stewart⁷ cases are urged upon us by the Government, but those cases are not applicable in the case at bar. In this case the issue was submitted to the jury; the points made by appellant concern his motion for a directed verdict and the sufficiency of the evidence to support the verdict.

When we have ordered directed verdicts it has been upon strong evidentiary grounds. In Douglas we pointed out that "Each case must be decided upon its own facts"⁸ and that directing a verdict is "a duty to be performed with caution".⁹ In Fielding we found a "strong showing of insanity made by the defense".¹⁰ In Satterwhite¹¹ "substantial evidence established the basis for a reasonable inference that appellant had been suffering from severe mental disturbance on" the date of the offense. In Wright we pointed out that "Wright's showing of insanity, far from being merely `some evidence' of insanity, is about as strong as can ever be made, unless the accused happens to have had a psychiatric examination immediately prior to his act."¹² We are of clear opinion that the testimony offered by Simpson was not sufficient to require a directed verdict.

Even if Simpson's evidence of low scores on intelligence tests were deemed to be sufficient to take the issue of insanity to the jury, the rebuttal testimony offered by the Government¹³ clearly justified rejection of the defense by the jury.

3. Simpson challenges as deficient the charge to the jury on the insanity issue. He claims that it dealt principally with the existence or non-existence of "mental disease", when it should have emphasized "mental defect".

Assuming that Simpson was entitled to an instruction on insanity, the charge given was not defective. The trial judge repeatedly used the phrase "mental disease or defect". He employed terms such as "defective mental condition" and "mental abnormalities". We find no error in his definition of mental defect or in his references to mental defect when explaining the causality requirement and when instructing on the issue of burden of proof.

4. All the appellants contend they were denied their constitutional right to a speedy trial.

Appellants were arrested on December 7 and 8, 1959. On January 25, 1960, Williams moved the court for a mental examination. On January 29th that motion was granted, and in the same order the case was continued to May 25, 1960.¹⁴ On May 16, 1960, Turberville moved for a continuance on the grounds that his counsel was ill and that appellants were still undergoing mental examinations. The case was continued until October 10, 1960. Between this date and November 16, 1960, the date of the actual commencement of the jury trial, the prosecutor was granted three continuances to locate missing witnesses. There is no indication that appellants objected to any of these continuances; nor did they ever move for an immediate trial or contend that any of the various delays were "manufactured"; no prejudice appears to have been wrought.¹⁵ We think appellants' contention cannot be sustained.

5. In his closing argument to the jury, counsel for appellant Williams referred to the participation by the other two defendants in activities of Williams and urged the finding of the lesser included offense of second degree murder. Appellant Turberville contends that these statements ignored his persistent denials of participation in the commission of the alleged crimes and interfered with the impartial assertion of his plea of not guilty. Neither Williams nor Simpson makes this argument.

Surely it is not improper per se for defense counsel to urge the jury to return a lesser verdict than that charged in the indictment.¹⁶ Furthermore counsel for Turberville failed to object at the trial to the closing remarks now in dispute.¹⁷ The trial judge charged the jury that what counsel stated in their arguments did not constitute evidence and also instructed the jury to consider separately each crime charged in the indictment, and that the evidence applicable thereto should be considered "separately as to each defendant." Even were we to hold that the point is reviewable on appeal, we find it difficult to accept the contention that Turberville was prejudiced by an argument which was in essence a strong, and successful, plea against conviction of murder in the first degree and mandatory capital punishment. In the situation in which counsel then found their clients, pleas for convictions of lesser offenses would appear to have been sound tactics.

6. Appellants Turberville and Simpson contend that the trial court erred in admitting evidence regarding what they consider to be the commission of a crime not charged in the indictment.

An examination of the facts surrounding what we shall term the "Tucker incident" is necessary to our disposition of...