*1 MILLER, Before WILBUR K. DANAHER, PRETTYMAN Cir- Judges. cuit MILLER, Judge. K. WILBUR indictment, In the first count charged with Everett arson.1 car, property, railroad in whole or D.O.Oode 1. Section any part, person, or of another schoolhouse, any maliciously church, meetinghouse, or or burn at- shall “Whoever buildings any dwelling, house, public District, tempt burn adjoining any belonging barn, the United States or to or stable outhouse, any shop, barn, store, shall suffer im- of- year store, any warehouse, prisonment fice, stable, for less than one oth- years. (Mar. steamboat, vessel, building, or than ten nor more er watercraft, boat, or other canal
857 alleged grand jury second, that under an In the the woman, degree elderly during perpetra- murder done the the death attempted perpetration fire tion or Brown, from the of one of resulted Bettie 22-2401, by Green, him un- the felonies enumerated in the and so accused § set may, (1951),2 which defendant 22-2401, the evidence der D.C.Code § it, killing guilty necessarily unpurposed be found of anoth- defines the cluded perpetrating murder in offense murder in the second er in arson degree.3 degree. the first jury submitting the In the case to The first murder section count, trial the under the second Code, set instructed on both length 2, supra, forth at in footnote en gree guilty of arson murder. Found larges the common law definition of that and of murder under the first count adding alia, crime unpurposed killing inter degree under the second in the second of another in count, appeals only from the lat- trating So, arson. when the evidence at ter. a trial tends to show the defendant com arson, mitted and that the fire was the He it was error to instruct death, sole jury degree murder; cause of the victim’s de on second guilty fendant is either of guilty. in guilty the verdict of under that instruc- unwilling or he is not tion shows to find him murder in the first degree; that, therefore, had the errone- as to the cause of the victim’s death was ous second instruction not been Rosenberg, Dep- that of Dr. Richard M. acquitted well have been uty Coroner of the under the second count of the indict- performed autopsy an Thus, ment. the sole on this Bettie Brown. He testified in appeal is whether erred part as follows: appellant’s prejudice instructing
to
in
you
Did
ascertain the cause
on second
murder.
of death of the deceased Bettie
Brown? A.
I did.
give
Whether it was error to
depends
that,
on whether there was
Would
state
Doc-
justify it;
evidence to
for we
tor ? A.
have held
The cause of her death was
“Although
2.
charged
Section
D.C.Code
the indictment
degree,
in the first
“Whoever, being
memory
of sound
could have been found
thereunder of
discretion,
purposely,
kills another
in
either
the second
had the evi-
premeditated
it,
of deliberate and
malice or
dence warranted
since a defendant
poison,
perpetrating
necessarily
means of
be
offense
attempting
perpetrate
charged
to
offense
included
the crime
in the .in-
punishable by imprisonment
peni-
31(c),
in the
dictment. Rule
Federal Rules of
tentiary,
purpose
Procedure,
or without
so to do kills
Criminal
18 U.S.C.A. But an
perpetrating
attempt-
on a lesser
included offense
perpetrate
any arson,
to
as defined
be
unless there is evi-
justify
Code,
section 22-401 or 22-402 of this
to
dence
it. Burcham v. United
rape, mayhem, robbery,
kidnapping,
States, 1947,
U.S.App.D.C. 283,
82
per-
All the
what
petrate
any housebreaking
while armed
occurred
at
using
dangerous weapon,
with or
guilty
”
* * *
degree.
of murder
else.
(Mar. 3, 1901,
1321,
854,
31 Stat.
ch.
§
Sparf
See also
and Hansen v. United
798;
347,
June
States, 1895,
51,
273,
156 U.S.
15 S.Ct.
339,
343;
States,
39 L.Ed.
Stevenson v. United
States, 1950,
1896,
839,
3. Goodall v.
313,
United
86 U.S.
162 U.S.
16 S.Ct.
40 L.
App.D.C. 148,
397,
980;
180 F.2d
17 A.L.R.2d
Ed.
Davis
1070. We said at
of 86 U.S.
165 U.S.
17 S.Ct