Fisher v. United States/Dissent Frankfurter

by Stanley Forman Reed

United States Supreme Court

328 U.S. 463

Fisher  v.  United States

 Argued: Dec. 5, 1945. --- Decided: June 10, 1946

Mr. Justice FRANKFURTER dissenting.

A shocking crime puts law to its severest test. Law triumphs over natural impulses aroused by such a crime only if guilt be ascertained by due regard for those indispensable safeguards which our civilization has evolved for the ascertainment of guilt. It is not enough that a trial goes through the forms of law. Especially where life is at stake it is requisite that the trial judge should so guide the jury that the jurors may be equipped to determine whether death should be the penalty for conduct. Of course society must protect itself. But surely it is not self-protection for society to take life without the most careful observance of its own safeguards against the misuse of capital punishment.

This case has been much beclouded by laymen's ventures into psychiatry. We are not now called upon to decide whether the antiquated tests set down more than a hundred years ago regarding mental responsibility for crime ^[1] are still controlling or whether courts should choose from among the conflicting proposals of scientific specialists. ^[2] This is not the occasion to decide whether the only alternative is between law which reflects the most advanced scientific tests and law remaining a leadenfooted laggard. The case turns on a much simpler and wholly conventional issue. For the real question, as I see it, is whether in view of the act of Congress defining murder in the first degree for prosecutions in the District and in light of the particular circumstances of this case, the trial court properly sent the case to the jury. That is a very different question from whether the court's charge was unimpeachable as an abstract statement of law. For Fisher is not the name of a theoretical problem. We are not here dealing with an abstract man who killed an abstract woman under abstract circumstances and received an abstract trial on abstract issues. Murder cases are apt to be peculiarly individualized, and this case has its own distinctive features. It is in the light of these that we must decide whether Fisher's death sentence should legally stand.

According to the more enlightened rule appellate courts may review the facts in a capital case. ^[3] Were such the scope of our review of death sentences, I should think it would be hard to escape what follows as the most persuasive reading of the record.

Fisher had learned from his boss of Miss Reardon's complaint about the slackness of his work. On the fatal morning, Miss Reardon told Fisher that he was not doing the work for which he was being paid, and in the course of her scolding called him a 'black nigger.' This made him angry-no white person, he claimed, had ever called him that-and he struck her. She ran screaming towards the window in the back of the room. Fisher ran out of the room and up the stairs. Her screaming continued. At the top of the stairs he saw a pile of wood lying by the fireplace. He seized a piece of wood, ran down the stairs and struck her on the head. The stick broke and he seized her by the throat. She continued to scream until she went limp. He then dragged her to the lavatory and left her there while he went back to clean up the spots of blood. She recovered sufficiently to scream again, and he returned to the lavatory and cut her slightly with a knife he carried in his pocket. The importance of the screaming is a key to the tragedy. It is difficult to disbelieve Fisher's account that he never wanted to kill Miss Reardon but wanted only to stop her screaming, which unnerved him.

'She ran out from behind her desk, down toward the back, screaming.' 'The screaming seemed to have gotten on my nerves.'

'I was running up on the steps, with her all the time screaming.'

'She was still screaming and I began choking her then.'

'I was just trying to keep her from making noise.'

'* * * she started hollering and I tried to stop her from hollering.'

'Then I began choking her because she was still hollering.'

'* * * I did not strike her any more after the noise had ceased.'

'* * * she started hollering again.'

'She kept hollering, seemed like to me.'

'My idea was just trying to stop her from hollering, is all I can think about.'

'After that she stopped hollering.'

The next day he started to go to the Cathedral to work as usual. He made to attempts to enter the Cathedral grounds. About the first, he said he got 'nervous and shaky, and (he) couldn't go in there.' Later he 'kept thinking about what (he) had done to her. (He) didn't know whether she was dead or alive. (He) was afraid to go up there and tell them that (they) had had an argument or fight.' When apprehended by two detectives he said, 'I had some trouble with a lady out at the Cathedral.'

The evidence in its entirety hardly provides a basis for a finding of premeditation. He struck Miss Reardon when she called him 'black nigger.' He kept on when her screaming frightened him. He did not know he had killed her. There is not the slightest basis for finding a motive for the killing prior to her use of the offensive phrase. Fise r, to be sure, had Miss Reardon's ring in his possession. But it came off in his hand while he was dragging her, and he put it away when he reached home to conceal its possession from his wife. He did not run away and he cleaned up the blood 'because (he) did not want to leave the library dirty, leave awful spots on the floor, (he) wanted to clean them up.' He treated the spots on the floor not as evidence of crime but as part of his job to keep the library clean. Fisher was curiously unconnected with the deed, unaware of what he had done. His was a very low grade mentality, unable to realize the direction of his action and its meaning. His whole behavior seems that of a man of primitive emotions reacting to the sudden stimulus of insult and proceeding from that point without purpose or design. Premeditation implies purpose and purpose is excluded by instantaneous action. Fisher's response was an instinctive response to provocation, and premeditation means nothing unless it precludes the notion of an instinctive and uncalculated reaction to stimulus. Accordingly, if existing practice authorized us to review the facts in a capital case I should be compelled to find that the ingredients of murder in the first degree were here lacking. I would have to find that the necessary premeditation and deliberation for the infliction of a death sentence were wanting, as did the New York Court of Appeals in a case of singularly striking similarity. People v. Caruso, 246 N.Y. 437, 159 N.E. 390. It is significant that the Court of Appeals for the District of Columbia has heretofore deemed it within its duty to examine the evidence in order to ascertain whether a finding of premeditation and deliberation was justified. Bullock v. United States, 74 App.D.C., 220, 122 F.2d 213.

But while it is not now this Court's function to interpret the facts independently, ^[4] the jury, under guidance appropriate for a murder case, might well have so interpreted them because the facts are persuasively so interpretable. If, under adequate instructions, it could have so found, the homicide falls outside the requirements for a finding of murder in the first degree. Congress in 1901 enacted a code for the District in which it joined the growing movement of dividing murder into degrees. ^[5] Congress confined the death sentence to killing by premeditation; it required designed homicide, previous deliberation that life was to be taken before the United States would take life in retribution. ^[6] The division of murder into degrees arose from the steadily weakened hold of capital punishment on the conscience of mankind. See Calvert, Capital Punishment in the Twentieth Century, 5th Ed., 1936; Report from the Select Committee of the House of Commons on Capital Punishment, and Minutes of Evidence (1930). The crime of murder was divided into two classes, in some States very early, ^[7] in recognition of the fact that capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation. It is this consideration that has led most of the States to divide common law murder into two crimes, and Congress followed this legislation. See Michael and Wechsler, A Rationale of the Law of Homicide (1937) 37 Col.L.Rev. 701, 703-704; Michael and Wechsler, Criminal Law and Administration (1940) 1269 et seq.

The bite of law is in its enforcement. Ths is especially true when careful or indifferent judicial administration has consequences so profound as does the application of legislation dividing murder into first and second degrees-consequences that literally make the difference between life and death. This places the guiding responsibility upon the trial court in no wise restricted by the course pursued by the defense. The preoccupation at the trial, in the treatment of the conviction by the court below and by the arguments at the bar of this Court, was with alluring problems of psychiatry. Throughout this melancholy affair the insistence was on claims of Fisher's mental deficiencies and the law's duty to take into consideration the skeptical views of modern psychiatry regarding the historic legal tests for insanity. I cannot but believe that this has diverted attention from the more obvious and conventional but controlling inquiry regarding the absence or presence of the requisite premeditation, under the circumstances of this case.

That the charge requested by the defendant and denied did not go to this issue of premeditation unambiguously but in an awkward and oblique way did not lessen the responsibility of the trial judge to bring this issue-it was the crucial issue-sharply and vividly to the jury's mind. If their minds had been so focused, the jury might well have found that the successive steps that culminated in Miss Reardon's death could not properly be judged in isolation. They might well have found a sequence of events that constituted a single, unbroken response to a provocation in which no forethought, no reflection whatever, entered. A deed may be gruesome and not be premeditated. Concededly there was no motive for the killing prior to the inciting 'you black nigger.' The tone in which these words were uttered evidently pulled the trigger of Fisher's emotions, and under adequate instructions the jury might have found that what these words conveyed to Fisher's ears unhinged his self-control. While there may well have been murder, deliberate premeditation, for which alone Congress has provided the death sentence, may have been wanting. ^[8] 'While it is unlikely that the jury would return a verdict of murder in the first degree unless satisfied that the defendant, at the time he committed the offense was capable of entertaining the malicious intent, we cannot, in a case of this kind, speculate as to what considerations entered into their verdict.' Sabens v. United States, 40 App.D.C. 440, 444. The same guiding consideration for reviewing a death sentence was pithily expressed the other day by the present Lord Chief Justice of England: 'It is impossible to say what verdict would have been returned had the case been left to the jury with a proper direction.' Kwaku Mensah v. Rex, (1946) A.C. 83, 94. In that case, the Privy Council found inadequacy in the direction given by the trial court on considerations that were not mentioned in the courts below nor raised by the appellant. Neither should we permit a death sentence to stand that raises such doubts as does Fisher's conviction on this record.

As I have already indicated, I do not believe that the facts warrant a finding of premeditation. But, in any event, the justification for finding first-degree murder premeditation was so tenuous that the jury ought not to have been left to founder and flounder within the dark emptiness of legal jargon. ^[9] The instructions to the jury on the vital issue of premeditation consisted of threadbare generalities, a jumble of empty abstractions equally suitable for any other charge of murder with none of the elements that are distinctive about this case, mingled with talk about mental disease. What the jury got was devoid of clear guidance and illumination. Inadequate direction to a jury may be as fatal as misdirection. The observations made by this Court in a civil case are especially pertinent to the duty of a federal judge in a trial for murder: '* * * it is the right and duty of the court to aid (the jury) * * * by directing their attention to the most important facts, * * * by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. * * * Constituted as juries are, it is frequently impossible for them to discharge their function wisely and well without this aid. In such cases, chance, mistake, or caprice, may determine the result.' Nudd v. Burrows, 91 U.S. 426, 439, 23 L.Ed. 286.

Only the other day we exercised our supervisory responsibility over the lower federal courts to assure against the possibility of unfairness in the operation of the jury system in ordinary civil suits. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984. By how much more should we guard against a fatal mishap where life is at stake. This Court in reviewing a conviction for murder in the federal courts ought not to be behind the House of Lords and the Privy Council in rejecting strangling technicalities. See Mancini v. Director of Public Prosecutions, (1942) A.C. 1, 7-8; ^[10] Kwaku Mensah v. Rex, supra. It should be guided, as was the Privy Council in the case of a lowly West African villager, by broad considerations of justice so as to avoid the mistake of affirming a death sn tence which the jury may well not have returned had they had a direction that would have informed their understanding and guided their judgment. In the circumstances of this case failure to charge the jury adequately was to deny Fisher the substance of a fair trial.

Men ought not to go to their doom because this Court thinks that conflicting legal conclusions of an abstract nature seem to have been 'nicely balanced' by the Court of Appeals for the District of Columbia. The deference which this Court pays to that Court's adjudications in ordinary cases involving issues essentially of minor or merely local importance seems out of place when the action of this Court, no matter how phrased, sustains a death sentence at the seat of our Government as a result of a trial over which this Court, by direction of Congress, has the final reviewing power. This Court cannot escape responsibility for the death sentence if it affirms the judgment. One can only hope that even more serious consequences will not follow, which would be the case if the Court's decision were to give encouragement to doctrines of criminal law that have only obscurantist precedents of the past to recommend them. Moreover, a failure adequately to guide a jury on a basic issue, such as that of premeditation on a charge of murder in the first degree, does not reflect a 'long established' practice, and one hopes will not become 'deeply rooted,' in the District. ^[11] Quite the contrary standard is indicated by an earlier opinion of the Court of Appeals. See McAfee v. United States, 70 App.D.C. 142, 105 F.2d 21, 26.

The judgment should be reversed and a new trial granted.

Mr. Justice MURPHY, dissenting.

As this case reaches us, we are not met with any question as to whether petitioner killed an individual. That fact is admitted. Our sole concern here is with the charge given to the jury concerning the elements entering into the various degrees of murder for which petitioner could be convicted.

The rule that this Court ordinarily will refrain from reviewing decisions dealing with matters of local law in the District of Columbia is a sound and necessary one. But it is not to be applied without discretion. Like most rules, this one has its exceptions. And those exceptions are grounded primarily in considerations of public policy and of sound administration of justice.

In the past this Court has seen fit to determine various common law issues affecting only the District of Columbia. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054, 73 A.L.R. 1203; Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054, 81 A.L.R. 703; Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. It has also, on occasion, settled issues involving the interpretation of provisions of the District of Columbia Code. Washington Fid. Nat. Ins. Co. v. Burton, 287 U.S. 97, 53 S.Ct. 26, 77 L.Ed. 196, 87 A.L.R. 191; Loughran v. Loughran, 292 U.S. 216, 54 S.Ct. 684, 78 L.Ed. 1219; District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329. In many respects, however, the problem in this instance far transcends the ones presented in those cases.

Here we have more than an exercise in statutory construction or in local law. It is a capital case involving not a question of innocence or guilt but rather a consideration of the proper standards to be used in judging the degree of guilt. What the Court says and decides here today will affect the life of the petitioner as well as the lives of countless future criminals in the District and in the various states. However guarded may be the Court's statements, its treatment of petitioner's claims will have inevitable repercussions in state and federal criminal proceedings. Moreover, these claims, whatever their merit, afford a rare opportunity to explore some of the frontiers of criminal law, frontiers that are slowly but undeniably expanding under the impact of our increasing knowledge of psychology and psychiatry. These factors are more than sufficient to warrant a full and careful consideration of the problems raised by this case.

The issue here is narrow yet replete with significance. Stated briefly, it is this: May mental deficiency not amounting to complete insanity properly be considered by the jury in determining whether a homicide has been committed with the deliberation and premeditation necessary to constitute first degree murder? The correct answer, in my opinion, was given by this Court more than sixty years ago in Hopt v. People, 104 U.S. 631, 634, 26 L.Ed. 873, when it said, 'But when a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury.' (Italics added.)

The x istence of general mental impairment, or partial insanity, is a scientifically established fact. There is no absolute or clear-cut dichotomous division of the inhabitants of this world into the sane and the insane. 'Between the two extremes of 'sanity' and 'insanity' lies every shade of disordered or deficient mental condition, grading imperceptibly one into another.' Weihofen, 'Partial Insanity and Criminal Intent,' 24 Ill.L.Rev. 505, 508.

More precisely, there are persons who, while not totally insane, possess such low mental powers as to be incapable of the deliberation and premeditation requisite to statutory first degree murder. Yet under the rule adopted by the court below, the jury must either condemn such persons to death on the false premise that they possess the mental requirements of a first degree murderer or free them completely from criminal responsibility and turn them loose among society. The jury is forbidden to find them guilty of a lesser degree of murder by reason of their generally weakened or disordered intellect.

Common sense and logic recoil at such a rule. And it is difficult to marshal support for it from civilized concepts of justice or from the necessity of protecting society. When a man's life or liberty is at stake he should be adjudged according to his personal culpability as well as by the objective seriousness of his crime. That elementary principle of justice is applied to those who kill while intoxicated or in the heat of passion; if such a condition destroys their deliberation and premeditation the jury may properly consider that fact and convict them of a lesser degree of murder. No different principle should be utilized in the case of those whose mental deficiency is or a more permanent character. Society, moreover, is ill-protected by a rule which encourages a jury to acquit a partially insane person with an appealing case simply because his mental defects cannot be considered in reducing the degree of guilt.

It is undeniably difficult, as the Government points out, to determine with any high degree of certainty whether a defendant has a general mental impairment and whether such a disorder renders him incapable of the requisite deliberation and premeditation. The difficulty springs primarily from the present limited scope of medical and psychiatric knowledge of mental disease. But this knowledge is ever increasing. And juries constantly must judge the baffling psychological factors of deliberation and premeditation, Congress having entrusted the ascertainment of those factors to the good sense of juries. It seems senseless to shut the door on the assistance which medicine and psychiatry can give in regard to these matters, however inexact and incomplete that assistance may presently be. Precluding the consideration of mental deficiency only makes the jury's decision on deliberation and premeditation less intelligent and trustworthy.

It is also said that the proposed rule would require a revolutionary change in criminal procedure in the District of Columbia and that this Court should therefore leave the matter to local courts or to Congress. I cannot agree. Congress has already spoken by making the distinction between first and second degree murder turn upon the existence of deliberation and premeditation. It is the duty of the courts below to fashion rules to permit the jury to utilize all relevant evidence directed toward those factors. But when the courts below adopt rules which substantially impair the jury's function in this respect, this Court should exercise its recognized prerogative.

If, as a result, new rules of evidence or new modes of treatment for the partly defective must be devised, our system of criminal jurisprudence will be that much further enlightened. Such progress clearly outweighs any temporary dislocation of settled modes of procedure. Only by integrating scientific advancements with our ideals of justice can law remain a part of the living fiber of our civilization.

Mr Justice FRANKFURTER and Mr. Justice RUTLEDGE join in this dissent.

Mr. Justice RUTLEDGE, dissenting.

A revolting crime, such as was committed here, requires unusual circumspection for its trial, so that dispassionate judgment may have sway over the inevitable tendency of the facts to introduce prejudice or passion into the judgment. This means that the accused must not be denied any substantial safeguard for control of those influences. A trial for a capital offense which falls short of that standard, although unwittingly, does not give him his due.

Congress introduced the requirements of premeditation and deliberation into the District of Columbia Code, Title 22, §§ 2401, 2404, in 1901. 31 Stat. 1321, with which compare Rev.Stat. § 5339, 18 U.S.C.A. §§ 452, 454. I do not think it intended by doing so to change the preexisting law only in cases of intoxication. Hence, I cannot assent to the view that the instructions given to the jury were adequate on this phase of the case. I think the defendant was entitled to the requested instruction which was refused or one of similar import.

I have no doubt that the trial court declined to give it believing that it was not required, perhaps also that it would be erroneous. For the fair-minded and able assistant district attorney who argued the case here conceded, with characteristic candor, that the courts of the District have consistently limited the effect of the controlling Code provision, by way of changing the preexisting law to cases of intoxication. But, for the reasons in the opinion of Mr. Justice Murphy, I do not think Congress intended the change to be restricted so narrowly. Accordingly I join in that opinion.

Apart from this defect, the instructions given were correct as far as they went. They were however in wholly abstract form, which in some cases might be sufficient. But the issues of premeditation and deliberation were crucial here on the question of life or death. A more adequate charge, I agree with Mr. Justice FRANKFURTER, would have pointed up the evidence, at least in broad outline, in relation to those issues.

Because I think the charge was deficient in not including the requested instruction or one substantially similar, thus in my opinion failing to meet the standard set by Congress in the Code, and because the effect of this deficiency was magnified by the failure to point up the instructions given in some more definite relation to the evidence, I think the judgment should be reversed.

Notes

1. Regina v. M'Naghten, 1843, 10 Cl. & F. 200. More than sixty years ago Sir James Fitzjames Stephen brought weighty criticism to bear on the M'Naghten case. 2 Stephen, A History of the Criminal Law of England (1883) 153 et seq.; for more recent consideration of the case see Glueck, Mental Disorder and the Criminal Law (1925) c. 6; Cardozo, What Medicine Can Do For Law (1930) 28-35.
2. See, e.g., White, Insanity and the Criminal Law (1923); Abrahamsen, Crime and the Human Mind (1944); Lindner, Rebel Without A Cause (1944); Radzinowicz & Turner, eds., Mental Abnormality and Crime (1944); Reik, The Unknown Murderer (1945); see also, Hall, Mental Disorders and Criminal Responsibility (1945) 45 Col.L.Rev. 677, 680-84, and authorities cited therein.
3. See, e.g., Annotated Laws of Masa chusetts, c. 278, § 33E; Commonwealth v. Gricus, 317 Mass. 403, 406, 58 N.E.2d 241; Massachusetts Judicial Council, Third Report (1927) 40-43, 131-35; Massachusetts Judicial Council, Thirteenth Report (1937) 28-30; New York Constitution, Article 6, § 7; People v. Crum, 272 N.Y. 348, 6 N.E.2d 51; Cardozo, Jurisdiction of the Court of Appeals, 2d Ed., 1909, § 51; American Law Institute, Code of Criminal Procedure (Official Draft, 1930) § 457(2); Orfield, Criminal Appeals in America (1939) 83 et seq.
4. As to certain classes of litigation that come here, this Court has, of course, always had power to review the evidence. E.g., '(Since) by an appeal, except when specially provided otherwise, the entire case, on both law and facts, is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge.' In re Neagle, 135 U.S. 1, 42, 10 S.Ct. 658, 660, 34 L.Ed. 55.
5. District of Columbia Code 1940, § 22-2401: 'Whov er, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in the perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.'
6. The legislative history of these sections is meagre. The separation of the crime of murder into two degrees seems to have been first proposed for the District in the Code of 1857. C. 130, §§ 1, 2. That Code was never enacted by Congress. The present provisions are the result of a Code prepared by Judge Cox and enacted in 1901. 31 Stat. 1189, 1321. In an historical note that precedes the Code, Judge Cox stated that it was to have been based on the laws of Maryland. District of Columbia Code (1940 ed.) xiv. In a letter to the Washington Board of Trade, however, Judge Cox stated that the Code was based on the laws of Maryland, Virginia, New York, and Ohio. Report of the Washington Board of Trade, November 14, 1898, pp. 23-24. And the Washington Law Reporter, vol. 26, p. 201, states that the 'portion of the work relating to crime and punishment follow the statutes of New York in creating degrees in the crime of murder.' A comparison of the Code with the New York Penal Code of 1898, §§ 183, 183a, 184, bears out this statement, though the exact language of the New York statute was not adopted.
7. Pennsylvania enacted this type of legislation in 1794. Pennsylvania Laws, 1794, c. 257, §§ 1, 2. This early statute has served as the pattern upon which most legislative action with a similar purpose has been based. See Michael and Wechsler, A Rationale of the Law of Homicide (1937) 37 Col. 701, 703-704; Michael and Wechsler, Criminal Law and Administration (1940) 1270-73. The District Code does not depart very far from the language of the original Pennsylvania statute; nor did the statute of the Territory of Utah construed by this Court in Hopt v. People, 104 U.S. 631, 632, 26 L.Ed. 873.
8. Federal judges are not referees in sporting contests. Their duty to keep a trial in the course of justice is especially compelling where the penalty for conviction is death. The kind of guidance that a trial judge should give a jury in a case like this is well illustrated by Judge Andrews in People v. Caruso, 246 N.Y. 437, 159 N.E. 390. E.g., 'But was there premeditation and deliberation? * * * Time to deliberate and premeditate there clearly was. Caruso might have done so. In fact, however, did he?
9. '* * * It is not too much to say of any period, in all English history, that it is impossible to conceive of trial by jury as existing there in a form which would withhold from the jury the assistance of the court in dealing with the facts. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words. It is not the venerated institution which attracted the praise of Blackston and of our ancestors, but something novel, modern, and much less to be respected.
10. 'Although the appellant's case at the trial was in substance that he had been compelled to use his weapon in necessary self-defence-a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal-it was undoubtedly the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter. The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. Thus, in Rex v. Hopper ((1915) 2 K.B. 431), at a trial for murder the prisoner's counsel relied substantially on the defence that the killing was accidental, but Lord Reading C.J., in delivering the judgment of the Court of Criminal Appeal, said (id. at 435): 'We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence, even though counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence-we say no more than that-upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."
11. The only authority adduced for what the Court terms long-established practice is United States v. Lee, 1886, 4 Mackey 489, 54 Am.Rep. 293. But that case was decided while common law murder was the law of the District. The enactment of the Code rendered that case's doctrine invalid. Counsel for the Government, a distinguished lawyer, Mr. A. S. Worthington, pointed to the distinction in his argument: 'In jurisdictions where murder is divided into two degrees-murder in the first degree requiring deliberation and pree ditation; in other words, actual malice-it has been frequently held that evidence of mental excitement resulting from drunkenness and, perhaps, also of other abnormal conditions of the mind not amounting to insanity, may reduce an unprovoked homicide to murder in the second degree; but it has always been held that such evidence cannot of itself reduce the crime to manslaughter.' Id. 4 Mackey at page 493, 54 Am.Rep. 293. The change wrought by Congress is reflected in Sabens v. United States, 40 App.D.C. 440; Bishop v. United States, 71 App.D.C. 132, 107 F.2d 297; Bullock v. United States, 74 App.D.C. 220, 122 F.2d 213, 214.