United States v. Steven Wayne Lilly

512 F.2d 1259, 1975 U.S. App. LEXIS 16161

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 1975
• Docket: 74-1063
• Status: Published

Opinions

OPINION

MERRILL, Circuit Judge:

Appellant and two companions, all members of the Assiniboin Indian Tribe, after an evening spent drinking beer at several different parties or locations, decided at 1:30 a. m. to obtain more beer from an establishment located on the Fort Peck Indian Reservation. At that establishment an altercation occurred, the proprietor was shot and killed and beer was stolen.

Appellant was indicted for first-degree murder as defined in 18 U.S.C. § 1111 (1970)¹ in that he “did unlawfully kill one William Carl Veseth, a human being, committed in the perpetration of a robbery, by shooting him with a rifle * * *.” He was convicted following jury trial.

Appellant assigns as error the failure of the district court to instruct the jury that robbery is a crime requiring specific intent and that intoxication may negate the existence of specific intent. The district court rejected appellant’s proposed instructions and instead charged as follows:

“You may not find the defendant guilty of first-degree murder by reason of a killing during the perpetration of a robbery, unless you find beyond reasonable doubt that at the time of the killing the defendant was engaged in the perpetration of a robbery as defined in these instructions.

Whoever, within the special territorial jurisdiction of the United States, by force and violence takes from the person or presence of another anything of value is guilty of robbery.

Elements required to be proved in order to establish robbery are:

1. That Steven Wayne Lilly did take beer from the person or presence of William Carl Veseth.

2. That such act was done by force and violence.

3. That the act was done within the exterior boundaries of the Fort Peck Indian Reservation.”

The charge with respect to robbery was based on 18 U.S.C. § 2111 (1970).² The Government contends, as it did below, that since specific intent is not expressly required by § 2111 it is not an element of the offense of robbery as there defined and as used in § 1111.

We cannot agree. Prior to revision in 1948 the section defining robbery did require specific intent.³ This was achieved by use in the section of the qualifying term “feloniously,” which had been recognized as signifying the element of specific intent to steal in robbery at common law. See United States v. Baker, 24 F.Cas. 962, 965 (No. 14,501) (C.C.S.D.N.Y.1861); United States v. Durkee, 25 F.Cas. 941, 943 (No. 15,009) (C.C.N.D.Cal.1856); R. Perkins, Criminal Law 279-80 (2d ed. 1969). The offense as thus enacted was accepted as the crime of robbery as known to the common law. See Collins v. McDonald, 258 U.S. 416, 420, 42 S.Ct. 326, 66 L.Ed. 692 (1922); see also United States v. Nedley, 255 F.2d 350, 355-57 (3d Cir. 1958). It was not until the 1948 revision to its present language that the word “feloniously” was dropped from the section. In light of United States v. Porter, 431 F.2d 7 (9th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970), and other cases dealing with the first paragraph of 18 U.S.C. § 2113(a) (1970), where similar language is used, it may be that specific intent is no longer required by § 2111. But see Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). That question we do not reach. We confine our ruling to robbery as that term is used in § 1111.

Section 1111, defining murder, was drawn without change from Act of March 4, 1909, ch. 321, § 273, 35 Stat. 1143 (codified as 18 U.S.C. § 452 (1946)). When that predecessor was enacted, robbery, either at common law or by statutory definition, see United States v. Carll, 105 U.S. 611, 612-13, 26 L.Ed. 1135 (1882), was a crime of which specific intent was a necessary element. The. Reviser’s Notes to the 1948 revision indicate no intention to alter the elements of “robbery” as used in § 1111. See H.R. Rep.No.304, 80th Cong., 1st Sess. Al, A89-90 (1947), 1948 U.S.Code Cong.Serv. 2434, 2444, 2545 (special pamphlet ed.).

There were special and important reasons for requiring that element when robbery was to serve as the basis for felony murder — reasons that may not apply to § 2111 or the first paragraph of § 2113(a). It was robbery’s specific intent that served to supply the element of premeditation.⁴ If the Government be correct in its view that robbery today, as that term is used in § 1111, does not require specific intent, the extraordinary result would be that first-degree murder, the essence of which historically has been cold-blooded premeditation in the nature of poisoning or lying in wait, could, as federal felony murder, be committed without specific intent to commit any crime at all. If the element of premeditation or its surrogate is to be completely eliminated from federal first-degree murder in this fashion, congressional intent to this effect should, in our view, be more expressly stated than it was in the case of the 1948 revision which resulted in § 2111.⁵

We conclude that specific intent remains an element of robbery as used in § 1111; that appellant was entitled to an instruction to that effect and to the effect that intoxication may negate the existence of specific intent, cf. Kane v. United States, 399 F.2d 730, 736 (9th Cir. 1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699 (1969); that it was error not to instruct to this effect.

Appellant’s remaining assignments of error either need not be reached or are without merit.

Reversed and remanded for a new trial.⁶

1 . “(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.”

2 . “Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.”

3 . The predecessor of § 2111 read as follows:

“Whoever, by force or violence, or by putting in fear, shall feloniously take from the person or presence of another anything of value, shall be imprisoned not more than 15 years.”

Act of March 4, 1909, ch. 321, § 284, 35 Stat. 1144 (codified as 18 U.S.C. § 463 (1946)).

4 . We note in passing that under § 1111 all murder, including second-degree murder and felony murder, requires “malice aforethought.”

5 . In the Reviser’s Notes to § 2111 the only reference made to any change in setting forth the elements of the offense was: “Minor changes were made in phraseology.” H.R. Rep.No.304, supra, at A134, 1948 U.S.Code Cong.Serv. at 2595 (special pamphlet ed.).

6 . We note that in sentencing defendant after the conviction here vacated the district court did not make the finding, required under 18 U.S.C. § 5010(d), that defendant, who was under 22 years of age at the time of conviction, would not benefit from the special forms of treatment provided under the Youth Corrections Act. See Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); Belgarde v. United States, 503 F.2d 1054 (9th Cir. 1974). This oversight can be cured if appellant is convicted in a new trial.