United States v. Parelius

• Decision Date: 28 April 1949
• Docket Number: Cr. No. 10206.
• Parties: UNITED STATES v. PARELIUS.
• Court: U.S. District Court — District of Hawaii

83 F. Supp. 617

UNITED STATES v. PARELIUS.

Cr. No. 10206.

United States District Court D. Hawaii. First Division.

April 28, 1949.

Ray J. O'Brien, U. S. Atty. Dist. of Hawaii, and Howard K. Hoddick, Asst. U. S. Atty., Dist. of Hawaii, both of Honolulu, T. H., for plaintiff.

Bouslog & Symonds, and Myer C. Symonds, all of Honolulu, T. H., for defendant.

METZGER, Chief Judge.

The defendant was found guilty of murder in the first degree without capital punishment, and has moved to set aside the verdict, with prayer for a new trial, on several grounds, among which are that the verdict is contrary to the weight of the evidence; not substantiated by sufficient evidence of premeditated design and malice; that the court erroneously refused the introduction of evidence regarding the character of the deceased, and that at least two members of the jury, which was not instructed that a verdict of first degree murder makes mandatory a punishment not less than life imprisonment, offer affidavits that they believed the court had power to determine punishment and had they been informed that the court has no discretion in the matter of punishment for first degree murder they could not have voted such verdict, but would have voted a lesser offense.

After hearing full and carefully prepared argument on the motion, which argument was limited by the court to the sufficiency and weight of evidence justifying a verdict of first degree murder, I am of opinion that the motion has sufficient merit to justly sustain it.

The defense had asked at the trial for an instruction by the court that the defendant was not guilty of first degree murder, but this request was denied under the principles set out in Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542. The jury was instructed that if it found murder in the first degree the punishment provided by law was death if such verdict was returned without qualification, but it was not instructed that if it qualified such verdict with the words, "without capital punishment", the court was then bound by the law, and without discretion, to pronounce a sentence of life imprisonment.

It is true, generally, that it is not the province of the jury to concern itself as to the degree of punishment, that being a matter either provided by law, or left to the discretion of the court, however, in the case of murder in the first degree where the jury is told by the court that it must in its verdict decide the question whether or not death sentence should be imposed, there remains an inference, in the absence of information as to a mandatory penalty, that if it decides against death penalty the court has power to then use its discretion in the matter of the term of imprisonment.

True, there is an element in first degree murder that is not contained in lesser degrees of homicide, namely, an unlawful, willful, deliberate, malicious and premeditated killing, and it conforms to the dictates of reason to suppose that if a jury concludes that a homicide was of such a kind it follows that it must be convinced it was murder in the first degree; however, it must be conceded that the simple definition of murder: "unlawful killing of a human being with malice aforethought", is not readily distinguishable from that of first degree murder, although the law says that any murder which does not contain all the ingredients first above mentioned is murder in the second degree. Experience has shown that juries are many times perplexed in reaching a decision as to first or second degree and distinguishing the shades of meaning between "unlawful killing * * * with malice aforethought" and "unlawful, willful, deliberate, malicious and premeditated killing".

From later careful consideration of all the evidence in the case I reach the conclusion that this was not first degree murder. I could not at the time of settling instructions feel free to so instruct the jury and denied such a request for, as in the case of a motion for acquittal, I felt obliged at that instant to consider the evidence from a standpoint most favorable to the Government's contentions and every piece of evidence in support of the indictment.

On a motion for a new trial on the grounds set out by the defense, the power of the court is much broader. If the court reaches the conclusion that a miscarriage of justice has resulted, the verdict should be set aside and a new trial granted.

If the judge sits as a thirteenth juror, as some authorities hold, then a verdict in which he could not concur should not stand if it is properly moved against. In any event he should act in preventing injustice when deliberated discretion prompts such act.

Of course, "justice" in jurisprudence is not a sentimental concept which each person may have as to right or wrong with relation to a given cause, or any duty he may have in connection with it, but is an impartial, fair and reasonable application of prescriptions of law both vengeful and protective.

When the verdict was announced I felt a shock, an uneasiness of conscience and self-censure that I had not more carefully and understandably instructed the jury as to the weight and degree of persuasiveness necessary in finding first degree murder, or have withdrawn it from jury consideration. I then realized for the first time that there was a neglect to ask for or to give an instruction to the effect that if two equally reasonable and believable explanations were presented in evidence relating to essential elements of the crime, one explanation tending to prove the presence and the other with equal force the absence of the element, the jury was duty-bound to adopt the one tending to innocence of that element.

In considering the motion for a new trial I have disregarded all grounds advanced other than the weight and sufficiency of the evidence as a whole. The affidavits of two jurors were presented showing that they would not have joined in the verdict had they known it called for life imprisonment. These are disregarded because the law will not permit a verdict to be impeached by such facts. Nevertheless, jurors should never be placed in such a predicament, and when they are voting mandatory life imprisonment they should know that they are voting that, for there is no doubt but that it would often give pause to many persons and cause them to examine with extreme care the evidence with its relation to all the elements of the crime charged in the indictment if they knew they were imposing the penalty. No one should be encouraged or permitted to vote a specific conviction in a homicide case in the belief that the judge has authority to use his discretion in doing what he considers fair and just by way of sentence when he has no such discretion.

Many aspects of this homicide were spectacularly gruesome, as described by officers who visited the scene and by F. B. I. agents who gleaned somewhat disconnected and contradictory versions from the defendant as to what had occurred. An examining physician testified to a number of abrasions of the scalp and a small fracture of the skull. There was evidence of profuse bleeding. This could have resulted from nose bleeding, which is often caused by a blow on the forehead. The physician did not testify as to suffocation or indications of choking, although the indictment charged it.

Testimony showed that blood had run through the mattress on the bed and formed a pool on the floor. This could have resulted from nose bleeding which, as is well known, may be profuse following a concussion blow on the forehead. The sight, pictorial or descriptive, of a blood pool is often hideously repulsive to average persons and, in connection with homicide, adds to feelings of condemnation toward the person responsible for the killing. For this reason such pictures should not be admitted to jury view other than in exceptional cases.

Uncontradicted evidence showed that the defendant, about 22 years old at the time of the homicide, had been reared in a strictly religious and prudish-minded family until inducted into the Army in 1944; that he was pretty much tied to his mother's apron strings, which he did not resent; was fervently religious and neither smoked, drank or used profanity and was taught by his mother that sexual things were filthy; that at the age of 14 he was forcibly subjected to carnal copulation by a male stranger and was thereafter subjected to similar abuses several times before he left his home and was enlisted in the Army. He testified that these experiences created in him a very deep hatred for men who had such homosexual desires and were bent on enforcing them; that he wondered why he was a target for such men, and the thought of the thing not only infuriated and shamed him but kept him in constant fear of sudden assaults; that he served through his Army enlistment by rebuffing one or two approaches by...