Josey v. United States, 135 F.2d 809

Josey v. United States

135 F.2d 809

D.C. Cir.

1943

Check Treatment

MILLER, Associate Justice.

Appellant was convicted of assault with a dangerous weapon. 1 Shе testified that she and Virginia Boxley, the complaining witness, had been friends for years; that about four o’clock p. m., on October 31, 1942, she and the complaining witness got into an argument because the latter’s little girl had called her names. About еight o’clock on the same date, the altercation was renewed when Virginia Boxley came running to her plaсe and struck at her; when the Boxley woman hit her again she took a razor blade and “came down across her fаce”; that Virginia had something in her hand when she came at her; that she did not know what'she had in her hand; that she was pushed first but did not receive any injury; that she did not receive any injury at all. Dr. Clark, of Freedman’s hospital, testified that he examined Virginia Boxley during the evening of October 31, 1942, at which time she had a serious cut across the face, which necessitated more thаn fifty stitches. The wound extended from back of the left ear, across the lower cheek, to the chin.

On this appeаl, the first question presented concerns the law of self-defense. It is contended that the trial court erred in permitting thе District Attorney to ask appellant, on cross-examination: “If you believed the Boxley woman was going to do ' you some harm, and you saw a knife in her hand, why didn’t you run into the house to avoid trouble ? ” Appellant relies upon Brown v. United States, 2 in which the Supreme Court held, among other things, that if a person reasonably believes he is in immediate danger of death оr grievous bodily harm from his assailant, he may stand his ground; and that, if, under such circumstances, he kills his assailant, he has', not exceeded ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the bounds of lawful self-defense. But the Supreme Court also said, in that case: “Rationally the failure to retreat is а circumstance to be considered with all the others in order to determine whether the defendant went farther than hе was justified in doing; * * *.” 3 Appellant’s argument assumes, improperly, that the two propositions are mutually exclusive. What the Court said was in rebuttal of the old doctrine that one must retreat “to the wall,” whatever the circumstances may be, in ordеr, successfully, to invoke self-defense. 4 It explained that such illustrations, stated in the early law, “have had a tendency tо ossify into specific rules without much regard for reason.” 5 But the Court did not by any means repudiate the requirement that one must reasonably believe he is in immediate danger of death or of grievous bodily harm, in order to justify a deadly assault in self-defense. What appellant believed, concerning Virginia Boxley’s conduct, and how that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍belief affected her, was, consequently, of vital importance. The question, propounded by the District Attorney, was calculated to search for the nature and character of her belief, and was entirely proper to determine whether appellant went farther than she was justified in doing.

Closely related, and again involving the law of self-defense, is appellant’s аssignment of error, based upon the court’s refusal to give the following prayer: “That if the defendant had reasonablе grounds to believe that the complaining witness was about to inflict violence upon her and was coming at her with a knife in her hand in a menacing manner, she was justified in defending herself and didn’t have to retreat.” This prayer was fatally defectivе. One of the determining elements in self-defense is the belief of the accused, concerning the imminence of danger. While it is necessary, therefore, that he have reasonable grounds to believe, it is necessary, also, that his mind react to those grounds, to the extent of believing both that danger is imminent, and that force must be used to repel it. 6 Consequently, there was *811 no error in refusing to give the offered prayer. But there was another reason, equally good, for denying the prayer; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍namely, that the law relating to self-defеnse was adequately covered in the instructions which the trial court gave. 7 Appellant’s obj ections thereto are without merit. 8

During his argument to the jury, the District Attorney stated: “From thе testimony of the doctor, the wound was a serious one and if it had been an inch lower the defendant might be here for murdеr.” This was permissible argument upon the question whether the weapon used was a dangerous one and whether it was likely to produce death or great bodily injury. 9 The circumstances of Berger v. United States, 10 upon which appellant relies, do not resemble those of the present case in any way.

Appellant called two character witnesses, who testified as to her good reputation for peace and good order and for truth and veracity. On cross examination the District Attorney was permitted tо ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ask these witnesses, over objection, if they had heard that the defendant had been arrested in 1940 for disorderly conduсt. The prosecution may not initially attack the defendant’s character. 11 After a defendant has attempted tо show his good character in his own aid, however, the prosecution may, in rebuttal, offer evidence of his bad chаracter. 12 While evidence of good or bad character is restricted to general reputation, and doеs not extend to particulars, a witness to good character may be asked, on cross-examination, whether hе has heard particular and specific charges, or rumors, against an accused, of acts inconsistent with the trаit of character about which the witness has testified. 13

We have carefully examined all appellant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍contentions and find them without merit.

Affirmed.

Notes

D.C.Code 1940, § 22 — 502: “Every person convicted of an assault with intent to commit mayhem, or of an assault with a dangerous weapon, shall be sentenced to imprisonment for not more than ten years.”

256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 18 A.L.R. 1276.

Ibid.

Ibid. See also Beard v. United States, 158 U.S. 550, 560, 15 S.Ct. 962, 967, 39 L.Ed. 1086.

Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 18 A.L.R. 1276.

Andersen v. United States, 170 U.S. 481, 508, 18 S.Ct. 689, 42 L.Ed. 1116.

Hodge v. United States, 75 U.S.App.D.C. 332, 126 F.2d 849.

See Hopkins v. United States, 4 App.D.C. 430, 443; Price v. United States, 51 App.D.C. 106, 108, 276 F. 628; Sacrini v. United States, 38 App.D.C. 371, 378; Kinard v. United States, 68 App.D.C. 250, 254, 96 F.2d 522, 526; Wallace v. United States, 162 U.S. 466, 471, 16 S.Ct. 859, 40 L.Ed. 1039; Gourko v. United States, 153 U.S. 183, 191, 14 S.Ct. 806, 38 L.Ed. 680; Beard v. United States, 158 U.S. 550, 564, 15 S.Ct. 962, 39 L.Ed. 1086; Rowe v. United States, 164 U.S. 546, 558, 17 S.Ct. 172, 41 L.Ed. 547; Andersen v. United States, 170 U.S. 481, 508, 18 S.Ct. 689, 42 L.Ed. 1116; Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 18 A.L.R. 1276.

Tatum v. United States, 71 App.D.C. 393, 110 F.2d 555, and authorities there cited; Hopkins v. United States, 4 App.D.C. 430, 442: “The best evidence of its dangerous character, and of what it was capable of doing, was the injury actually inflicted by it.”

295 U.S. 78, 84-89, 55 S.Ct. 629, 79 L.Ed. 1314.

1 Wigmore, Evidence (3d ed. 1940) § 57, р. 456: “The rule, then, firmly and universally established in policy and tradition, is that the prosecution may not initially attack the defendant’s character.” Davila v. United States, 1 Cir., 54 F.2d 356; Mansbach v. United States, 3 Cir., 11 F.2d 221; Mercer v. United States, 3 Cir., 14 F.2d 281.

Borum v. United States, 61 App.D.C. 4, 56 F.2d 301, cert. denied sub nom. Logan v. United States, 285 U.S. 555, 52 S.Ct. 459, 76 L.Ed. 944; 1 Wigmore, Evidence (3d ed. 1940) § 58.

Stewart v. United States, 70 App.D.C. 101, 104 F.2d 234; Clark v. United States, 57 App.D.C. 335, 23 F.2d 756; Jung Quey v. United States, 9 Cir., 222 F. 766, 771; Spalitto v. United States, 8 Cir., 39 F.2d 782; 3 Wigmore, Evidence (3d ed. 1940) § 988.