Before EDGERTON, Chief Judge, and BAZELON and BURGER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1958.CDC.130
July 21, 1958, Judgment Entered
Opinion Filed Aug. 7, 1958, Petition for Rehearing En Banc Denied Sept. 12, 1958.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDGERTON
This appeal is from a conviction of murder in the first degree.
Appellant pleaded not guilty and testified he "must have been insane." As we said in Tatum v. United States, 88 U.S.App.D.C. 386, 390, 190 F.2d 612, 616, "the function of the trial court in regard to the issue of sanity is to determine whether that issue is brought into the case by evidence." Here, the trial court determined that the issue was brought into the case by evidence. The court instructed the jury that "the defendant has raised the issue of insanity" and that "the first thing you will do is to consider whether or not at the time the crime was committed the defendant was of sound or unsound mind. . . . If you find that he was of unsound mind or have a reasonable doubt about it, of course, you must return a verdict of not guilty by reason of insanity."
But appellant's trial counsel, who was not his present counsel, had already said to the jury: "I think this is a case of manslaughter, not a case of first degree murder . . .. We are not asking you to acquit this man, to free him. We know that he must pay a penalty . . .. So that again, I say, we have not asked you, we do not ask you for an acquittal."
Defense counsel's attempt to take the defense of insanity out of the case was error. We cannot say it was not prejudicial.It must have tended, and may have tended effectively, to persuade the jury to disregard the court's subsequent instruction that they should find the defendant not guilty by reason of insanity unless they found, beyond a reasonable doubt, that he was sane. *fn1
Reversed and remanded for a new trial.
BURGER, Circuit Judge (dissenting).
Appellant and some others, including the deceased, were visiting one night at a gasoline station. Appellant and the deceased, who had both been drinking, but were not drunk, got into a heated argument which stopped just short of blows. Appellant left the station, went to his home a block away, got a shotgun out of a closet, loaded it, returned to the station, and shot the deceased in the back, through the window at a range of three feet, as deceased sat watching television. Before he left the filling station to get the shotgun appellant, by his own pretrial admissions, said to Jack Douglas, his intended victim, "You had better not be here when I come back."
Appellant testified he had been drinking pretty heavily; that he killed deceased under the influence of alcohol, and that "I did this crime unbeknowing to what I was doing in a crazy and insanity manner," and "I must have been insane," and "I believe I was insane, out of my head." The explanation for his conclusion that he was insane was the fact that he shot deceased in the back; at some points it might be argued that he meant "crazy drunk."1 In response to a question by the prosecutor, he stated his defense was both intoxication and insanity. on the day of his arrest he told one of the policemen that he had an aunt who was insane; that he was not crazy but would like to be; that he would rather be in St. Elizabeths than jail; that he knew the difference between right and wrong; that he didn't think what he did was right, but the deceased had kept picking on ...