United States v. Thompson, 73-1650.
| Decision Date | 19 February 1974 |
| Docket Number | No. 73-1650.,73-1650. |
| Citation | 492 F.2d 359 |
| Parties | UNITED STATES of America, Appellee, v. David Wade THOMPSON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David A. Gerdes, Martens, Goldsmith, May, Porter & Adam, Pierre, S. D., for appellant.
Larry Von Wald, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.*
David Wade Thompson, an enrolled member of the Cheyenne River Sioux Indian Tribe, was indicted for the first degree murder of Glen Alvin Mowrer on the Cheyenne River Reservation in violation of 18 U.S.C. §§ 1111 and 1153. He was tried before a jury, found guilty of second degree murder and sentenced to a thirty-year prison term.
The defendant contends on appeal that the trial court erred by:
(1) refusing to instruct the jury on involuntary manslaughter as a lesser included offense;
(2) denying the defendant's motion for a judgment of acquittal on the first degree murder charge;
(3) permitting an F.B.I. agent to testify as to statements made by the defendant; and
(4) refusing to instruct the jury on self defense.
On the afternoon of October 13, 1972, the defendant and his father, Max Thompson, left the home of the defendant's parents, located about thirty miles southwest of Mobridge, South Dakota, to visit his grandmother. The defendant placed a .22 caliber rifle in the car so that "if we got over there and seen an animal, badger or skunk trying to break in, we could destroy it." On their return home a few hours later, Max Thompson observed some of Mowrer's cattle in the "south pasture" and asked the defendant to drive the cattle "out of there." Use of the south pasture had been a continual source of friction between Max Thompson and Glen Mowrer. While the defendant was chasing the cattle out of the pasture, Glen Mowrer and two of his children were herding other cattle along a road north of the pasture. Mowrer intended to place these cattle in the pasture. When Mowrer saw that the defendant was chasing his cattle out of the pasture, he left those he was herding and confronted the defendant. A heated exchange resulted. The defendant then returned to his parent's home and reported the incident to his father. The defendant and his father drove back to the pasture. As they got out of the car at a gate leading into the pasture, Max Thompson removed the rifle and put it near the barbed wire fence. Max Thompson then stationed himself in a position to keep Mowrer from opening the gate. Mowrer and Max Thompson argued about putting the cattle in the south pasture, and at one point as the two physically scuffled, the defendant intervened. He hit Mowrer, picked up the gun, pointed it at Mowrer and told him to "get the law."
Mowrer went back to where his children were now holding the cattle. Soon thereafter, Terry Ducheneaux, Mowrer's brother-in-law, arrived and Mowrer returned to the gate. He and Max Thompson argued again when Mowrer attempted to open the gate and Max Thompson tried to prevent him from doing so.
While the two argued, the defendant mounted a horse with the rifle in his hand and rode toward the cattle being held by Mowrer's children. The defendant testified about the subsequent events as follows:
Mowrer was killed by this shot.
The trial court instructed the jury on first degree murder, second degree murder and voluntary manslaughter. The court refused to instruct the jury on involuntary manslaughter,1 stating:
* * * I don\'t think that anything stated by way of evidence would bring the lesser included offense of involuntary manslaughter in the picture at all.
We view this as error.
A defendant is entitled to an instruction on a lesser included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i. e., a charge may be demanded by either the prosecution or defense. United States v. Grant, 489 F.2d 27 (8th Cir., 1973); United States v. Whitaker, 144 U.S. App.D.C. 344, 447 F.2d 314 (1971).
It is conceded by the government that all but the third condition was met in this case. It argues that the trial court properly held that there was no evidence to justify a conviction of involuntary manslaughter. It reasons from Shaffer v. United States, 308 F.2d 654 (5th Cir. 1962),2 that the defendant's handling of the gun necessarily involved an assault on Mowrer with a dangerous weapon, a felonious act, and that, therefore, the jury could not conclude that the defendant killed Mowrer in the commission of a "lawful" act or in the commission of "un unlawful act not amounting to a felony."
We reject this reasoning.3 Section 1153 of Title 18 of the United States Code provides that the offense of assault with a dangerous weapon is to be defined in accordance with the laws of the state in which the alleged crime was committed.4 The Cheyenne River Indian Reservation lies within South Dakota. Assault with a dangerous weapon under the applicable South Dakota statute5 requires intent to injure" or "to do bodily harm." Such intent, of course, can be found by the trier of fact from the objective circumstances, including the "visible conduct of the actor." It may be found in the face of a denial by a defendant of such an intent, but it need not be. A defendant is entitled to have his testimony — that he did not intend to injure or to do bodily harm — considered by the jury.
In this case then, it was for the jury to determine whether the defendant intended to do bodily harm or to injure Mowrer. The court's instructions effectively took this option from the jury, and it follows that it was error to reject the defendant's request for the involuntary manslaughter instruction. Had the involuntary manslaughter instruction been given, the jury could have weighed all of the evidence, including the defendant's statement, in determining his intent. The failure to give the instruction effectively precluded the jury from considering the defendant's statement that the pulling of the trigger was accidental. We, therefore, have no alternative but to reverse the judgment and remand this matter to the District Court for a new trial.
Because this case may be retried and an appeal may result therefrom, we briefly discuss the remaining issues.
The trial court did not err in denying the defendant's motion for a judgment of acquittal on the first degree murder charge. The evidence was sufficient to submit the question of premeditation to the jury.
We are convinced that the statements of the defendant to Special Agent Milton B. Kuhl were made voluntarily. There is no...
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