United States v. Barbeau
| Citation | 92 F. Supp. 196 |
| Decision Date | 09 August 1950 |
| Docket Number | No. 2346 Cr.,2346 Cr. |
| Parties | UNITED STATES v. BARBEAU. |
| Court | United States District Courts. 9th Circuit. District of Alaska |
J. Earl Cooper, United States Attorney, Ralph E. Moody, Assistant United States Attorney and Gerald F. McLaughlin, Assistant United States Attorney, all of Anchorage, Alaska, for plaintiff.
George B. Grigsby, Wendell P. Kay, Anchorage, Alaska, for defendant.
Paul Gunn was shot and killed by the discharge of an automatic pistol in the hands of defendant, Lilburn H. Barbeau. The bullet entered decedent's mouth and passing through his neck shattered one of his vertebrae and severed his spinal cord. At the time of the homicide, the defendant and decedent were seated in a small room in defendant's dwelling house, facing each other and approximately six feet apart. Defendant was then engaged in loading or had just completed loading his automatic pistol.
The defendant was indicted for the crime of murder in the first degree, that is, of killing "purposely, and either of deliberate and premeditated malice", section 65-4-1, Alaska Compiled Laws Annotated 1949, hereinafter referred to as A.C.L.A. At the close of the trial the Court directed the jury to find a verdict of not guilty as to the crime charged in the indictment, that of murder in the first degree, but submitted to the jury the included crimes, namely, murder in the second degree, voluntary manslaughter and manslaughter through culpable negligence. The jury returned a verdict finding the defendant guilty of the crime of manslaughter through culpable negligence. The relevant portions of the verdict are quoted below: "We, the jury, duly selected, impaneled and sworn to try and determine the issues in the above entitled case, find the defendant not guilty of the crime of murder in the first degree as charged in the indictment herein, or of the crime of murder in the second degree, but further find the defendant guilty of the crime of manslaughter in that he did through his culpable negligence at or about the time and place stated in the indictment, kill Paul Gunn by shooting the said Paul Gunn with a pistol, the said crime of manslaughter being included in the crime charged in the indictment."
Motions for judgment of acquittal, for arrest of judgment and for a new trial were made, argued and denied. Thereupon, defendant was sentenced to be imprisoned for the term of three years. He seasonably filed notice of appeal and applied for order admitting him to bail pending appeal under Rule 46(a) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., hereinafter referred to as the Rules.
The motions made on defendant's behalf, including the application for allowance of bail pending appeal, are based upon several grounds, none of which is deserving of serious attention except the one asserting that the offense for which the defendant was convicted is not necessarily included in the offense charged in the indictment and therefore the verdict and judgment are in contravention of Rule 31 (c) of the Rules, which provides: "The defendant may be found guilty of any offense necessarily included in the offense charged * * *"
No request or even suggestion was made on behalf of the defendant that the crime of manslaughter through culpable negligence was not included within the crime charged in the indictment until after verdict. During the trial, the defendant endeavored to prove and evidently did prove to the satisfaction of the jury, that the killing was accidental and not intentional. He failed to convince the jury that the accidental killing was not the result of his own culpable negligence.
There is no occasion for surprise in this result. The evidence indicated beyond reasonable dispute that Paul Gunn could not have been killed unless the defendant had, at the very least, been negligent to some degree. The pointing of an automatic pistol loaded or being loaded, toward another human being seated six feet distant, is scarcely consistent with the due care required by law. The jury simply went one step further and found the defendant's negligence to be culpable.
The defendant offered certain instructions on the subject of killing through culpable negligence in substantial harmony with the instructions given by the Court. He proposed no instructions to the effect that manslaughter by culpable negligence was not included within the crime charged in the indictment, and at all stages of the case it was assumed by both parties, as a matter of course, that manslaughter by culpable negligence was included within the crime charged in the indictment.
Sections 65-4-1, 65-4-3, 65-4-4, A.C.L.A., define, respectively, the crimes of murder in the first degree, murder in the second degree (killing purposely and maliciously), and manslaughter. Section 65-4-4 provides: "That whoever unlawfully kills another, except as provided in the last three sections, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty nor less than one year."
Thereafter, in Section 65-4-8, is the following: "That every killing of a human being by the culpable negligence of another when such killing is not murder in the first or second degree or is not justifiable or excusable, shall be deemed manslaughter and shall be punished accordingly."
It is not necessary to set out the statute governing the circumstances under which a homicide may be justifiable, for no suggestion was made that the killing of Paul Gunn was justifiable under the law. Section 65-4-11, A.C.L.A., makes provision for excusable homicide, the relevant parts of which are: "that the killing of a human being is excusable when committed * * * in doing any * * * lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent."
The meaning of our statutory provisions concerning manslaughter is not entirely clear. As has been noted, the law provides that the killing of a human being is excusable when committed in "doing any * * * lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent." And yet, when treating of the subject of negligent homicide, the Congress provided that "every killing of a human being by the culpable negligence of another" under the limitations stated in Section 65-4-8, supra, shall be deemed manslaughter and shall be punished accordingly. (Emphasis supplied.)
Upon consideration of that part of our law concerning excusable homicide, Sec. 65-4-11, it would seem to have been the intent of the Congress that every involuntary killing through negligence and not excusable, should be considered unlawful and therefore criminal. But if that be the case, then the use of the word "culpable" would appear inapt or unnecessary, for that word by judicial construction has no settled, well-defined meaning.
Ballentine's Law Dictionary gives the following definition of "culpable negligence":
Black's Law Dictionary contains a like definition, as follows:
The Criminal Court of Oklahoma in the case of Jackson v. State, 1947, 84 Okl.Cr. 138, 179 P.2d 924, a homicide case, held that culpable negligence is ordinary negligence and that was also the decision in the Florida case of Russ v. State, 1939, 140 Fla. 217, 191 So. 296, 298.
But in State v. Carter, 1938, 342 Mo. 439, 116 S.W.2d 21, the court held that culpable negligence must be negligence characterized by recklessness or wanton disregard of the rights of others, and that was the ruling in the case of Reed v. Madden, 8 Cir., 1937, 87 F.2d 846, citing with approval and quoting from the opinion in the case of State v. Melton, 1930, 326 Mo. 962, 33 S.W.2d 894, 895. While in State v. Bates, 1937, 65 S.D. 105, 271 N.W. 765, the Court went so far as to indicate that the word "culpable" involved consciousness of wrongdoing, saying that the proof must be such as to raise the possible inference of mens rea. In State v. McComb, 1925, 33 Wyo. 346, 239 P. 526, 528, 41 A.L.R. 717, a case apparently relied upon by the text-writer in 26 Am.Jur. 299, the statute construed used the words "by any culpable neglect or criminal carelessness". The Court held the words "culpable" and "criminal" to have been used synomously, and that want of ordinary care not sufficient to sustain a charge of manslaughter. Evidently in Michigan the term "gross negligence" is used in the statute. People v. Barnes, 1914, 182 Mich. 179, 148 N.W. 400.
If the term "culpable negligence" shall be considered to mean something more, negligence of greater degree, than lack of "usual and ordinary caution", Section 65-4-11, it would seem to follow that there is a no-man's-land in the law as regards the crime of manslaughter, in that an involuntary...
To continue reading
Request your trial
-
State v. Franklin
...to commit the greater without first having committed the lesser." Giles v. United States, 9 Cir., 144 F.2d 860, 861; United States v. Barbeau, D.C., 92 F.Supp. 196; Barbeau v. United States, 9 Cir., 193 F.2d In the Prater case, as we have suggested, the crime of voluntary manslaughter is ne......
-
United States v. Stephenson
...That interpretation is controlling here and has been followed in the Third Judicial Division of the District Court of Alaska. U. S. v. Barbeau, D.C., 92 F.Supp. 196. Attention might also be directed to the case of Nordgren v. U. S., supra, in which case, 181 F.2d at page 721, 722, there app......
-
Rhodes v. United States
...bail pending appeal, pointing out that the only issue in the case was whether the appeal was frivolous). See also: United States v. Barbeau, D.C.D.Alaska 1950, 92 F. Supp. 196; United States v. Goldfine, D.C.D.Mass. 1958, 169 F.Supp. 93. 3 For discussions of the various factors which might ......
-
United States v. Schneiderman
...States, 2 Cir. 1950, 184 F.2d 280, 281-282 n. 4; D'Aquino v. United States, 9 Cir., 1950, 180 F.2d 271, 272; United States v. Barbeau, D.Alaska 1950, 92 F.Supp. 196, 202, affirmed, 9 Cir. 1951, 193 F.2d Upon the hearing, after adverting to the view just expressed that to grant bail pending ......