Weakley v. United States

198 F.2d 940

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 21, 1952
• Docket: 10975_1
• Status: Published

Opinions

CLARK, Circuit Judge.

This is an appeal from a conviction of murder in the first degree. Appellant had been employed by a local branch of a food distributing concern, and had been discharged from employment. Decedent was local manager of the firm and was shot by appellant during the course of an interview which took place in decedent’s office on the morning following appellant’s discharge.

Appellant contends that the evidence adduced at the trial was not sufficient to support a verdict of guilty and that the failure of police to preserve a knife found on the person of decedent deprived appellant of a fair trial. In addition, he contends that the court failed to instruct the jury adequately concerning the requirement that there be a lapse of “an appreciable length of time” between formation of the intent to kill and the act of killing.

As to the first contention, there is evidence of disagreement between appellant and decedent culminating in appellant’s discharge. The day after his discharge appellant armed himself, sought out Carnes, and obtained a private interview in Carnes’ office. Appellant claims that a dispute ensued and that he did not fire until Carnes seized him and loudly threatened him with harm. However, persons in the vicinity of the cubicle which served as Carnes’ office testified that they heard no sound of argument, even though the opaque glass partitions defining the office did not extend to the ceiling and even though Carnes had a “heavy, frog-like voice”, nor did they hear sounds of a scuffle. Appellant fired several times, and according to expert testimony the shots were fired from a distance in excess of four feet. One shot struck decedent in the chest, and two struck him in the back of his head after he had fallen. In such a state of the evidence, the court properly denied the motion for directed verdict,¹ and the evidence is adequate to support the verdict which was returned.

With great care, the court instructed the jury concerning the concept of reasonable doubt and the rule that a verdict of not guilty must follow upon any reasonable doubt or any reasonable hypothesis upon the whole evidence consistent with the innocence of the appellant, and the jury could well have reached the decision it did. Where a jury has been properly instructed and the evidence is such that it supports the verdict reached, this court will not usurp the function of the jury in deciding guilt or innocence.

In his account of events which transpired in the room with Carnes, appellant stated that Carnes “went for his pocket” and that there was a “long black knife” on the desk. No such “long black knife” was found at the scene, and the only knife which police did find was described by witnesses as a small, ornamental, pearl-handled knife, of the watch chain type, which decedent had in his pocket. Police considered this knife harmless, and of no significance in the case. They permitted it to remain with decedent’s personal effects at the hospital and it was subsequently disposed of to decedent’s widow. When the United States Attorney’s office learned of the knife, diligent efforts,were made to retrieve it so that it might be available at trial, but the knife had been lost. At the trial, in the absence of the knife itself, there was careful and satisfactory testimonial evidence concerning its size and condition, and there was no prejudice to appellant.

Appellant contends that the police were guilty of gross negligence or wilful misconduct in their failure to preserve the knife, but with that we cannot agree. At most the police committed an error of judgment within a field in which they are constantly called upon to make decisions. Police officers must be extremely careful when investigating homicides to preserve any objects or information which might shed light on the matter investigated, and certainly error, if any, would far better be on the side of caution. However, we repeat that there was no prejudice to appellant since adequate testimony was adduced at trial concerning the knife.

We come now to appellant’s principal claim of error. He contends that the court did not adequately instruct the jury on the elements of premeditation and deliberation since he did not expressly charge the jury that “an appreciable length of time” must elapse between formation of the intent to kill and the act of killing.

On his first instruction of the jury, and on his later instruction to clarify the distinction between first- and second-degree ■murder, the court stated that premeditation and deliberation involved a “turning over in the mind of the defendant a conceived plan or design whereby he is going to take human life”. If any cautionary treatment of the words premeditation and deliberation were needed, the descriptive phrase “turning over in the mind” served adequately to direct the jury’s attention to the requirement which they impose that there be a lapse of “some appreciable time” between the formation of intent and the act of killing.

Whether or not reflection and consideration amounting to the deliberation required for first-degree murder actually occurred must be determined by the jury, properly instructed by the court, from the circumstances preceding and surrounding the killing. But it is not a question of how long an accused may have deliberated before his act, for the authorities are agreed that no particular length of time is necessary.²

Other contentions of appellant not expressly commented on here have been carefully considered and are without merit. In addition, since this is a capital case, we have examined the entire record in search of any errors which counsel might not have called to our attention, but we have found none.

The judgment of the District Court is Affirmed.

1 . Curley v. U. S., 1947, 81 U.S.App.D.C. 389, 160 F.2d 229, certiorari denied 1947, 831 U.8. 837, 67 S.Ct. 1511, 91 L.Ed. 1850.

2 . Bostic v. U. S., 1937, 68 App.D.C. 167, 94 F.2d 636 and cases there cited.