United States v. Dent, 72-1321.

• Decision Date: 30 March 1973
• Docket Number: No. 72-1321.,72-1321.
• Citation: 477 F.2d 447,155 US App. DC 278
• Parties: UNITED STATES of America v. Patricia DENT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

155 US App. DC 278, 477 F.2d 447 (1973)

UNITED STATES of America v. Patricia DENT, Appellant.

No. 72-1321.

United States Court of Appeals, District of Columbia Circuit.

Decided March 30, 1973.

As Amended April 4 and April 26, 1973.

Michael Mulroney, Washington, D. C. (appointed by this Court) was on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Lawrence H. Wechsler, Asst. U. S. Attys., were on the brief for appellee.

Before LEVENTHAL and ROBB, Circuit Judges, and JAMESON,^* United States Senior District Judge for the District of Montana.

PER CURIAM:

Appellant was convicted of manslaughter in the stabbing of her brother, Leroce, and appeals from a judgment of 6 to 24 months' imprisonment on the grounds that the judge should not have submitted the second degree murder charge to the jury, and that he failed to instruct the jury adequately on accidental homicide. We affirm.

The facts, developed principally by John Barsh, a friend of the deceased Leroce, are: The night of March 1, he and Leroce were drinking beer in the hallway of the small apartment building where Leroce and appellant lived. Appellant joined them; she and her brother began to discuss bills to be paid; the two then moved to appellant's room, where the discussion heated into an argument. When Leroce turned to abuse of their father, appellant asked her brother to leave the house. Leroce left the room, went outside for 10-15 minutes, then returned, and the argument was renewed in the entrance hallway.

When Leroce again went outside for several minutes, appellant went to the kitchen and returned holding, in her right hand, a knife with a six-inch blade. Meanwhile, Leroce had reentered the hall; and the argument was renewed. Barsh grabbed the appellant and urged her in vain to drop the knife. The argument continued, marked now by Leroce's taunt to appellant: "Stab me".

Leroce eventually turned and walked out of the house. Barsh released appellant, who ran out, picked up a beer can in her left hand and threw it at her brother. Leroce turned, picked up a mop or broom handle from the front yard, and struck the appellant with it. Leroce tried to run down the front steps but was grabbed by appellant. They scuffled on the front porch. She held the knife in her right hand and held onto Leroce with her left arm, trying to get his arm from her neck. Barsh tried to separate the pair, could not, and retired to the side of the porch. When the struggle ended, Leroce lay on the front porch, dying of a stab wound some four inches deep, which penetrated the heart.

Barsh, who did not see the struggle in its entirety, testified that he believed Leroce was trying to escape his sister and that she was holding on to him. The appellant, who took the stand in her own defense and in broad terms corroborated Barsh's testimony up to the critical juncture, asserted that Leroce was trying to throttle her. She claimed that she had armed herself in self-defense out of fear that Leroce would do her violent injury. She went to get the knife because, "I figured I could scare him" and to "try to get him out of the house." Several defense witnesses testified that Leroce had a reputation for assaultive behavior.

The instructions given to the jury by the trial judge covered the elements of the pertinent offenses. He charged the jury, inter alia: Malice may be inferred from the willful use of a deadly weapon, where not explained or justified by the circumstances, or where the act is done so recklessly or wantonly as to manifest deprivity of mind and disregard for life. A homicide is manslaughter when committed intentionally in the heat of passion, caused by adequate provocation, such as might naturally induce a reasonable person to lose self-control and to act on impulse. Manslaughter may be established by a homicide resulting from recklessness — not "mere negligence alone," but "recklessness involving extreme danger of death or serious bodily harm, a gross deviation from the standards of conduct that a reasonable person would observe." The high degree of recklessness requisite for malice and murder is distinguished from the lesser recklessness constituting manslaughter, by reason of the quality of defendant's awareness of risk—either actually, or from the showing of such danger "that any reasonable person must have been aware of it." "And, as I say, there is a third degree of conduct not amounting to recklessness at all, which is simply negligence, and you may not infer the element of recklessness in either instance if that is all you find was present." These...