*1 only attaches carrier bility of a common transportation duty immediate
when
arises.” Hutchinson, Law effect, see
To the same 88.
Carriers, ed. applied these rules When here, conclusion presented
facts that there had
that can be drawn carrier for immediate delivery had not been
transportation. Railway grade amount as to the
informed shipped, weight, destination its
cotton to be Indeed, its cars consignee.
or the furnished, yet
transportation weigh duty had the Britt still What we the cotton himself.
load Rail bailment gratuitous here is a customers. one of its
way accommodate reasons, decision
For is affirmed.
District Court
Affirmed. UNITED STATES.
BARBEAU v.
No. Appeals Court of States Ninth Circuit.
Dec. Rehearing Denial of Amended on
As Jan.
Stephens, Judge, dissented. also, F.Supp.
See *2 Alaska, acquittal Anchorage, tion for Grigsby, second George B. of ? murder appellant.
for (a) Atty., Ralph E. The Federal of Rules Criminal Pro- Cooper, U. S. Earl J. cedure, U.S.C.A., apply to Anchorage, Alas- Atty., Moody, Asst. U. S. provide: Alaska district court1 “Convic- ka, appellee. for may tion Less The defendant Offense. DENMAN, Judge, and Chief Before necessarily guilty be found of an offense ORR, Judges. STEPHENS and included charged in offense or of an attempt to commit either the offense DENMAN, Judge. Chief necessarily charged or an offense included judgment of appeal This from a is an attempt therein if the is offense.” District Court for conviction in the Alaska Alaska has its Criminal -Code and own culpable by negligence. manslaughter A.C.L.A.1949, 66-13-74, provides: § Barbeau was indicted “ * * * That in all cases defendant A.C.L.A.1949, under 3 first murder bemay guilty found crime the com- 65^4-1, “First mur- which reads: § necessarily mission which is included memory whoever, being of sound der. That charged that with which indict- he is either of discretion, purposely, and ment, attempt or of an to commit such by or premeditated malice deliberate and crime.” perpetrating or poison, or in means of wording pro- Although the these two arson, any rape, perpetrate, attempting different, they slightly visions is are the another, guilty kills robbery, burglary, They represent the same same substance. degree, and shall in the first of murder policy liberalizing the rules of criminal suffer death.” pleading. away struggle break Since by the Grand The indictment returned plead- early of criminal from formalism Jury the 18th charged: “That on about progress, ing is still in Anchorage, day February, 1950at Third by manslaughter Alaska, Division, Lil- District of Judicial burn H. Barbeau gence is offense of (cid:127) purposely of deliber- murder, in- premeditated malice killed Paul ate and verdict, yet completely dictment and is not by shooting the said Paul Gunn with settled. The has seldom arisen be- pistol.” culpable negligence punished cause is not guilty, plea found of not states, many punished, where it is guilty of in the first murder Barbeau not important part not an crim- local guilty of murder degree, inal him guilty degree, but found jurisdiction within states culpable negligence-. court, tendency has been to homicide as included attention merit Four issues our Arizona, California, Idaho and (a) the in- of murder. verdict: manslaughter through Montana all define offense for which the charge the dictment convicted; “Man- (b) of due care in the same words: evi- lack defendant was justify killing unlawful of a human is the sufficient dence of * ** (c) being malice. negligence; com- verdict of pro- which might lawful act error the district court overrule mission * * * exclude, motion from the duce death without due defendant’s caution circumspection.” specific jury, taken those This exhibits kind motive; (d) error for is included the general the of deny manslaughter; the defendant’s definition district mo- Ann.1939, 43-2904; 54(a) (1). Cal. § Ariz.Code 1. Rule 192; 4 § Penal Code Idaho Code 31(c). Rule ; 18-4006 8 Revised Codes § Mont.1947, 94-2507. 9á7 separate negligence; and in the section of more serious than statement in another involuntary third15 the indictment was for criminal code. manslaughter. language But only- Nevada has the same definition setting apart cases shows no reason for slight changes wording;4 Ore- *3 type manslaughter accomplished through same,5 gon’s virtually the al- definition is decisions negligence. All these separate though in the definition is a section generalization degrees state the that all manslaugh- from general definition of punish are which the will homicide law only signifi- Washington ter. makes killing, so charge included in a of unlawful departure drafting by legislative cant lesser verdict finds a long manslaughter of homi- defining kind charged homicide indict- than was justifiable cide which is not excusable ment. specifically in and which is not set out other statutes.6 sections of criminal logical We extension prosecuted as man- Negligent homicides are these cases the Western states as slaughter under Alaska this section. The sound before us. The view by culpable manslaughter statute on gravamen negligent of the crime of homi technique gence in that Oregon follows the cide same as that for murder and the separate it is set out in a from the section same as that manslaughter. for voluntary general definition of manslaughter. All are homicides which not excusable provide All substantially of these states t-he they require under It true that jury may similar terms that a return a culpability different states of mind verdict on a lesser or offense goes this difference to the charged by the crime the indictment.7 punishment. It is fruitful to note that most California,8 Idaho,9
The courts
Mon-
difficulty
holding
courts have had no
tana,10 Oregon11
Washington12 have
voluntary
first
murder includes
charge
sup-
will
held
of murder
involuntary manslaughter,
although the
port a conviction for the crime of man-
requires
specific
former
kill
intent to
slaughter. Three of these cases in states of while the latter two do not.
jurisdiction
the Ninth
facts
involve
specificity
which showed that
the defendant was
is, primarily,
give
indictment
defend
culpably negligent
conduct
his
ant
preceded
right
the benefit of his
homicide.
-Constitutional
none of
present
them is on all fours with the
case to be informed
the nature
and cause of
since in one of them13 the
and,
indictment
against
secondarily,
accusation
him
voluntary manslaughter;
in another14
protect
subsequent
him
prosecution
sufficient
there was evidence
conduct
practical
for the same offense.16 These are
Nev.Comp.Laws
1929, Hillyer,
Gee,
688,
4.
10069.
§
State v.
48 Idaho
requirements con- more than what the indict- indictment need was stated magic present formulae in to succeed. ment to wheth- tain order to the issue met, far purposes Have these er his client was guilty .as culpable negligence. Barbeau is concerned? The Sixth Amend- ment was amply light satisfied clear It is was informed of interesting facts. We thus have charge against him extent that attorney appellant’s situation where substantially prejudiced during the was not accept- claims error district court’s government’s trial. At close ance view of the leading of his law to its case, acquit- attorney defendant’s moved for giving appropriate to the jury the instruc- tal on the murder. *4 ap- tion that is clearly under Here time, argument In his that at stated: plicable 52(a) Rule of the Criminal Rules only question “The which be submit- could requiring disregard “defect, ir- any us to Honor, jury, my opinion, ted the to Your regularity which affect or variance does not homi- question is the not the or of rights”. This rule is a restate- substantial . might might negli- cide or not pro- 556 ment of fromer of Title 18 which gent the by offense also defined stat- —the present- indictment found vided: “No and man- which be deemed may utes —and by grand jury other any ed district or provisions 65-4-8.” of under deemed of shall be court the United States provides: That the Code section Alaska trial, judgment insufficient, or shall the nor 8.—Negligent That homicide. “§ 65-4— by be rea- proceeding thereon affected other killing being by cul- every a human the imperfection matter any son of or defect another, pable negligence when such kill- or only, which not of form shall tend to or de- ing is not murder in the first ”* * * prejudice of the defendant. excusable, gree, or shall justifiable is not Nothing opinion with this conflict pun- manslaughter, be deemed and shall be States, 9 our decision in Giles v. United accordingly.” ished Cir., 144 860. There a conviction F.2d attorney renewed his motion at statute negligent homicide the Alaska under again evidence and conced- close of upheld and we affirmed the district on ed that was evidence instruction on the give court’s refusal to jury, stating: negligence go to and dis intentionally crime pointing me, here, it to “We have seems latter crime is not charging firearm. The jury, the go thing possibly that could crime a homicide and is not included or not there was such of whether homicide. Our decisions weapon negligence handling States, Cir., 142 F. Crutchfield v. United culpable as amount to occasion States, Cir., Hopper and v. United pur- how the negligence. And I don’t see given F.2d have both liberal pose necessary elements —the construction to indictments drawn in this present degree are of the second circuit.17 giving the instruction to justify case to request in- we therefore that the jury and requisite spe primary Since the given not that the be struction and cificity charge informing the ac — negli- confined met, proper say cused—has been it is gence.” negligent homicide is in a attorney’s stated being In accordance This of murder. so and Barbeau law, gave the Alaska negligently view having killing been convicted of 18, 1950, on the crime of pistol February instruction with a at quoted culpable negligence Anchorage, may infra. later he be convicted deliberately killing Gunn. attorney of defendant’s views While Alaska are not properly the laws determina- The court (b) instructed the interpreted tive, he that he in order here states to convict Barbeau of requiring manslaughter by homicide statutes it Alaska must (1947). See Col.L.R. 693
9á9 “ * * * lying under weapon a de- “A. This found negligence of such I there. wanton, edge left it of the settee gree, to be deserv- and I so gross * * * way. pick upit Culpable did not move punishment. ing slight more than gence something toas “Q. anyone statement make a Did a civil support negligence necessary to had gun that whether or not Culpable negligence damages. action for fired? conse- implies disregard of a reckless he fired “A. Mr. after Barbeau said quences, indifference a needless laid it down gun put safety he lives rights safety even the * * * edge of the settee. under the others.” “Q. any state- Mr. Barbeau make Did conduct, The facts Barbeau’s concerning he ment in did to admitted, following: On are than shooting happened, other after m., the 18, 1950, p. at February about 2:30 ? laying on the floor his home gathered Yes, put safety he “A. said it on Howe Paul Gunn Jack ran to the the floor then it down on laid P-38 exchanging a Walther side of Gunn.” *5 pistol pistol a the same in return for testified: cross-examination Fox Gunn, make calibre owned Howe. and testify that out Grigsby: you Did “Mr. purchase who Barbeau’s debtor on the was place you that at the house before left the car, the of a men to Cadillac had driven the you with refer- said Barbeau at house He Barbeau were in the car. and the gun the shot laying ence down after suspected by police that steal- time the fired ? was recently the transmission which had ing put In the room of living been in the car. Yes, he “A. did. house, the sat across from the other Gunn “Q. say reference And what did he approximately two men sat a who on settee to that ? they ex- engaged 6 feet There distant. put safety He that on “A. said he it and changing grips guns the their before at it there his feet. laid down making guns the exchange the mutual you he “Q. that said that And do know gun, Barbeau themselves. took Howe’s he put safety it on after the shot? placed lap, magazine, shoved in it his the He shot —the reaching on a “A. Yes. said the was another shell put gun gun He the it cushion him when the fired the went off. took pistol near feet.” ibullet on laid it at his Presumably, safety that killed Gunn. the down impact shoving clip the had caused safety the later stated that Barbeau forward, fly slide to into shell carrying jury the The evi- on he shot. when fired chamber, the the hammer with it. following against Barbeau resolved the conflict dently There the argument had been no between is sufficient to sustain this evidence men, the and no boisterous conduct before culpable negligence, consider- finding shot. proximity the de- ing the close danger dealing the obvious fendant and There conflict in the evidence Thus not the case does come with firearms. put safety as to whether Barbeau had the People Angelo, reasoning the within gun shoving mechanism on before where 159 N.E. 246 N.Y. clip gun. According into to the testi facts, a given “Under state of court said: mony policeman, aof Barbeau stated question negligence is a whether put gun safety.” he fired the “on after The judgment. Ordinarily testimony of Policeman direct Fox on jury, as is the is as follows: examination exists all. But one negligence Moody: you weap- “Mr. Did any ques- it may the other become a as in case anyone weap- give you any negligence slight If the ons is so tion of standard, required reach the ons? not arise from takenly been held acquittal of criminal court advise an should course, cannot mere Of one negligent acts. accused.” generally disregard act of others’ safe- (c) Certain exhibits compensatory judg- ty without risking possible motive in the Barbeau’s oversight resulting injury an ment for trial; but introduced hardly prescribed a crime. can stricken they argues that should have shooting court relates incident of removed motion when on his upon places culpability the idea that jury’s murder safety there is conflict whether the as to charge of sec- consideration. “safety” when the gun catch of the was on jury was still ibefore ond murder say re- gun went off. The court to show relevant and these exhibits were solved that that was necessary for that crime.18 the intent safety to load the while judgment of A motion for (d) was not “on”. There is not a sub- word of acquittal murder second safety stantial evidence in case that evidence of ground that there was no gov- significant was not on. It is properly kill was Barbeau to intent phase ernment does even mention this motive, above denied. The exhibits appeal. If the case in its brief They to, the case. were still in referred found, inference with so was an an intent to evidence of were circumstantial except support it scarcely anything to. they inference kill; raised a sufficient on, safety guns when the do not ordi- the issue to leave of intent narily Appellant discharge. testified di- event, since jury. murder to the rectly that the catch on and there *6 convicted of second de- was not creditable evidence in case to the effect murder,'he preju- cannot now claim gree particular make of fact appeal. dice on his permit defective a manner to the dis- affirmed. judgment charge exactly The of conviction related it. course, weighed the'evidence is not Of STEPHENS, Judge. Circuit appeal, jury but it seems to me I dissent. suspicion. mere is found Wherein followed “manslaugh- very the crime The name of remotely suggesting act in this evidence connotes a bad culpable negligence” ter by wantonness, negligence, gross negligent. It is a to be act. It is not crime recklessly an- an intent to act denoting negligent all to be more less the fate of safety ? There be there other’s must evil or a conflict it is somewhat by character and testimony Pages pages is no crime. negligence with the qualify of terms to are in the case and certain exhibits “culpable”. word possible wrongdoing relating to an to showing act is one interest of a mo- Strictly speaking, automobile in the killing. course, it is abhorrent performed unwittingly tive for the Of applicable act crime. The unwitting testimony to de- name an me, “man- term, “manslaughter would be of homicide above grees it seems better By culpable negligence” since that crime im- recklessness”. ports apparent that no intent to kill. The should be term would such No warped crime instructed. could into a have been so instruction act innocent point by appellant on this in the instant case and was offered was done as I think objection cases. exhibits been done in numerous I think has room for excerpts subject going con- the case in Words glance A made seq., particularly and there were motions for et at sideration and Phrases probable that principles It this motive acquittal. that the I will 'show page appellant’s prejudiced amply supported by authority. greatly evidence are state here revealed cases mis- case. It will also be Evidence, 4th ed. § Underhill’s Crim. upon sus-
I think the rests conviction immate-
picion supported by irrelevant reversed.
rial evidence and should be
Upon petition rehearing. for petition rehearing
The is denied. for concurring: Judge, STEPHENS, Circuit Torrance, Cal., Armstrong, Donald for denying join the court I in the action of appellant. reason petition rehearing for the Bauder, Gilbert, Thompson Kelly, & point made every that the court examined Wunderlich, Cal., Angeles, Los Jean came to petition care great appellee. adhere advisedly. its decision I dissenting my my reading dissent. STEPHENS, HEALY, Before statements, opinion my I wish would BONE, Judges. Circuit can be a effect no act doing, specific intent modified its HEALY, Judge. regula- certain exclude acts in violation appeal We are confronted punishable tory statutes which apparently question concerning novel our States, Morissette v. crimes. See jurisdiction to entertain it. 72 S.Ct. attempted appealed to be January entered No 30-day was taken within the period
prescribed by Fed.Rules Civ.Proc. rule 73(a), 20, 1951, March U.S.C.A. On party losing pre- filed and sented to the district court an affidavit in that through he stated inadvertence CO. UMBERLAND MINING NORTH permitted he had 30-day period to ex- CO. STANDARD ACC. INS. pire entry because he was not aware of the *7 No. 12950. receive notice He it. asked time for Appeals States Court extended March 1951. On the same Ninth Circuit. court, day the appellee, without notice to 22, 1952. Jan. made an order extending 'the time to the requested.
date appeal, Notice of dated 22,. 1951, March was thereafter served appellant by mail within the extended time. April .1951,appellee filed notice of motion and motion for reconsideration and by the court vacation of its order on the ground that the same was made without appellee notice to open motion made in court, opportunity appellee object to be heard or to thereto. The fur- ground files, was advanced that ther records, proceedings and dockets affirmatively cause show entry date of the judg- clerk entry all counsel of the ment notified Accompanying the the same. motion was appellee’s an affidavit record stating that he received from the clerk 26, 1951, copy of the January notice of