Robert Earl Pryor v. James H. Rose, Warden

re by prior estopped not year for taxable that year), withheld all taxes

fund of 1593,22 denied, 89 S.Ct. 394 U.S.

cert. argu Additionally, the (1969).

L.Ed.2d standpoint factual from a

ment is meritless Trust because to Akron respect that it finding basis for no provides

record its assets and distributed operations

ceased

to the beneficiaries. award

The Tax Court declined ground the trusts on the fees to

attorneys’ the re EAJA does authorize

that the litigation of costs incurred

covery the issue We decline to resolve

Tax Court. the Tax Court is authorized

of whether case. In proper fees in a attorneys'

award

stead, the trusts we base our decision that fees attorneys’

are not entitled to recover that, purposes for the

on the fact

EAJA, prevailing par were not the trusts

ties. reasons, the decision of foregoing

For the is affirmed.

the Tax Court PRYOR, Petitioner-Appellee, Earl

Robert Warden, ROSE, H.

James

Respondent-Appellant.

No. 81-5401. of Appeals, Court

United States Circuit.

Sixth

Argued June 1983. Jan.

Decided 1984.

CONTIE, Judge. Circuit a of an from rehearing appeal This is the relief to granted court order which district petition on a for appellee, Pryor, Robert to 28 brought pursuant corpus habeas The court held that 2254. U.S.C. § as- sentences for imposition of consecutive robbery with a to commit sault intent assault with intent deadly weapon and violated the degree murder commit first clause of the United States jeopardy double the writ granted It therefore Constitution. with intent for assault as to conviction We affirm. to commit first murder. I. tried in the Criminal Court of

Pryor was Tennessee. The record re Shelby County, John Win August flects that on manufacturing plant in Mem bush was at phis. through alley As he walked an behind he encoun plant cigarettes, in search of tered the Winbush testified petitioner. then occurred: following that events He me—came Okay, A. uh-huh. called that, just me like so I turned up to he away and walked from him. So It right (indicating). hit me here this a loose and knocked me burst down, got my eyes blood all in and everything. ’Course however this now, up you has been sewed know. I and hospital Since went everything. Then after he knocked Leech, Jr., William M. Atty. Gen. of beating he start on me with me down Tenn., Nashville, Tenn., Jennifer Helton stick, pipe, you that or whatever Small, Hoyal argued, J. Andrew Asst. At- ah, it, know. the mon- you call And Gen., tys. for respondent-appellant. I front he ey my pocket had se, Robert Earl Pryor, pro William H. there that. got went in Farmer, Defender, argued, Federal Public Nashville, Tenn., Alderman, Ross E. pe- Winbush, Q. you All Mr. stated right, titioner-appellee. with a cane or you were struck metal— LIVELY, Before Judge, Chief and ED Yeah, something walking A. made like a WARDS, ENGEL, KEITH, MERRITT, stick. KENNEDY, CONTIE, MARTIN, JONES, ask WELLFORD, Q. you object Let me hand KRUPANSKY Circuit Judges.* it? you identify if can * original panel decision, published at 699 of the court. (6th Cir.1983), F.2d 287 order was vacated He had it degree. what he had. 39.2402. Murder in the first Yeah, that’s

A. —An commits murder in the first up he called me individual when his hand degree if: right, show did and That’s him. deliberate, with this commits thang. (1) me He ma- beating

start killing or mur- down, me on licious and kept he knocked After der; me, going he told I’m beating me and man, willful, deliberate, going you. (2) I’m to kill He commits a and you

to kill murder, killing malicious or and: money. me some more Give (a) employee The victim is an ‡ if: sfc % # having custo- department of correction Q. sir,— right All actor, dy of the that, at the time kept telling A. He me inmate in (b) prison The victim is a (indicat- me with this beating he was actor, custody with the ing). (c) The victim is known to actor peace acting be a officer or fireman employment, the course of his Q. Winbush, times were many Mr. how acting The victim is a (d) judge you pipe? struck with this duties, judicial course of his Well, know, all I I was hit lots of A. (e) popularly The victim is a elected just with that I couldn’t pipe times official, public I know say exactly many how times. hire; (f) The offense is committed I hit a of times with it. I lots or, couldn’t tell the exact amount of you is committed while at- (g) offense licks that he hit me with it. I’d did evade law enforcement of- tempting to times, say quite a few he did. ficials; Two indictments arose from this incident. willful, (3) He another to commit a hires The first accused the of assault- petitioner deliberate, malicious premeditated and ing Winbush with the intent to commit a murder, hiring caus- killing or and willful, malicious, premedi- deliberate and victim; or es death of tated murder. The second indictment willful, (4) He commits a deliberate and charged Pryor robbery deadly with with a killing malicious or trial, weapon. peti- At found the arson, any rape, rob- perpetration tioner guilty of assault with intent to com- kidnapping, bery, burglary, larceny, mit first degree imposed pen- murder and throwing, or unlawful piracy, aircraft alty of six to twenty-one years imprison- of a destructive placing, discharging or ment. The jury Pryor guilty also found device or bomb. assault with robbery intent to commit with murder, degree first the trial defining a deadly weapon, a lesser included offense under judge options instructed of robbery deadly weapon. It af- and 4 of this statute: fixed a sentence of ten to twenty-one years in the first An individual commits murder imprisonment. judge The trial that ordered willful, degree (1) if: he commits a delib- these consecutively. sentences be served erate, and malicious and law, applicable Under then Tennessee murder; killing (4) or or he commits jury was entitled to convict on the Pryor killing deliberate and malicious or first petitioner indictment if the would during perpetration any have degree arson, been of first murder had rape, robbery, larceny, burglary, the victim died. Accordingly, kidnapping, piracy, Tennessee’s aircraft or unlawful first or throwing, placing, discharging murder statute is relevant:1 of a de- provision 1. Tenn.Code Ann. 39.2402. This 39-2-202. § § has since been amended. See Tenn.Code Ann.

structive device gotten his money, appellant bomb. When the act told the vic- of killing tim, is not done man, in the commission of “I’m going you going to kill I’m some one of the felonies named in the kill you. Give me some more money.” definition of above, in order that ... The the as- appellant completed had it be murder in the degree, the kill- robbery sault with the intent to commit ing must is, be done willfully, when the money was taken. purpose, with the intent that act by Appellant beating resumed the victim which taken, the life of the party is expressed the intent to kill. The effect; should have that deliberately, jury adduced from the facts the appellant is, with a cool purpose; maliciously, intended to this new exclama- carry out is, with malice aforethought; tion. There were two separate dis- premeditation, a design to tinct offenses committed. [Citations kill must be formed before the act omitted.] performed, by which produced. death is The appellant argues that since words, proof other must be adduced to the petitioner rely does not on any satisfy the mind of the exceptions 2254(d), listed in 28 U.S.C. § death of the party slain was the ultimate quoted statement finding is a of fact which will, result which the concurring delibera- is binding disagree. on this court. We tion premeditation party ac- multiple Whether crimes committed during cused sought. [Emphasis supplied.] a single transaction are the same offense petitioner The contends that felony- under the approved by standard the Su murder theory contained in the instruction preme Court a question of law. The permitted requirement premeditation presumption of correctness attaches neither to be by satisfied a finding of intent law, to state court conclusions of Marshall commit robbery. argues He the two v. Lonberger,-U.S.-, 843, 103 S.Ct. crimes for which he was convicted are thus 849, 74 (1983), L.Ed.2d 646 nor to state the “same” for jeopardy double purposes, applications court of law to the facts of and that he therefore can neither be con- Sumner, 544, individual cases. 449 at U.S. victed of both crimes nor given consecutive Moreover, 101 S.Ct. at 767. the Tennessee sentences. Court of Appeals Criminal was not entitled to examine the evidence arguments actu- II. ally deciding introduced at trial in whether Before considering the merits of this the offenses were the same for double jeop- question, we must address the appellant’s ardy purposes. The court should instead claim that certain state findings court are have focused on the proof necessary to es- entitled to a presumption of correctness un tablish the statutory elements of each of- Mata, der Sumner v. 539, 101 449 U.S. S.Ct. Vitale, 410, fense. Illinois v. See 447 U.S. 764, 66 L.Ed.2d 722 (1981). The parties 416, 2260, 2265, 100 S.Ct. 65 L.Ed.2d 228 agree that the double jeopardy clause pro (1980); States, Pandelli v. United 635 F.2d against tects multiple punishments 533, (6th Cir.1980). 538 Consequently, this same offense. North Pearce, Carolina v. court will fully review the petitioner’s dou- 711, 717, 395 2072, 2076, U.S. 89 S.Ct. 23 jeopardy ble claim. (1969). L.Ed.2d 656 The Tennessee Court held, Criminal Appeals however, that the III. offenses committed Pryor were not the same: Ohio, 161, In Brown v. 166, 432 U.S. 97 proof

The accredited by 2221, the jury verdict S.Ct. 53 L.Ed.2d 187 (1977), the clearly establishes there was an Supreme assault Court adopted the rule of statuto- and taking of the money from the vic- ry construction set forth in Blockburger v. tim’s front pocket- States, Then 299, 304, after ap- United 284 U.S. 52 S.Ct. pellant had knocked the 180, 182, victim (1932), down 76 L.Ed. 306 for determin-

529 un- tended the two ing whether are the same consecutive sentences for two offenses crimes. jeopardy der double clause: applicable rule is that where Pandelli, supra, Under the rationale of same act or transaction constitutes a vio- murder statute is a Tennessee’s provisions, of two statutory lation distinct criminal statute” because it “multi-purpose the test to determine applied categories seeks to four different punish only there two offenses or whether are killings. Consequently, unlawful before the one, provision requires is whether each test may apply Blockburger court proof of a fact which the other does statute, the court must select from the this not.... alternatives that are rele- latter those Pandelli, 635 F.2d at vant to this case. indicated, this test fo

As has been 537-38; Whalen, see also 445 at U.S. necessary to establish upon proof cuses offense, alternative at 1439. The first statutory elements of each S.Ct. deliberate, ar malicious and specific concerning rather than on the evidence or See, guments at Vi presented e.g., killings trial. is relevant because it tale, at 2265. If U.S. S.Ct. is the reflected in the indictment. theory two offenses are same under concerning felony- The fourth alternative standard, sentencing permissi cumulative murder also is relevant because the trial ble. Conversely, Supreme Court has included it in his instructions to the judge held that if two offenses are the same un jury. test, der this consecutive sentences are for argues

bidden unless there is a clear The that the appellant indication legislative upon intent to the is that which the contrary. Whalen relevant alternative 684, 692, 100 States, v. United 445 U.S. S.Ct. grounded. Neither the Su indictment 1432, 1438, (1980). 63 L.Ed.2d 715 Consecu this has addressed preme Court nor court tive sentences are where such permissible Although published opinions this the issue. expressed an intent is because “the clearly under which discuss the various indictments question punishments of what are constitu none con prosecuted, the defendants were tionally permissible is not different from the of a variance between problem sidered question punishments of what the Leg instructions.2 jury the indictment and islative Branch imposed.” intended to be jury presumed hold that since a We States, 333, Albernaz v. United 450 U.S. in dis guidance look to its instructions for 344, 1137, 1145, 101 S.Ct. 67 L.Ed.2d 275 of as charging grave responsibility (1981). The is that since underlying theory innocence of a crimi certaining guilt legislatures possess prerogative to set defendant, 442 Randolph, Parker v. nal see Whalen, 689, criminal penalties, 445 at U.S. 2139, 62, 73, 2132, 60 L.Ed.2d 99 U.S. S.Ct. 1436, 100 S.Ct. a criminal defendant does (1979), instructions are judge’s 713 a trial multiple punishments receive for an deciding important ignored to be too offense unless a imposes greater court a portions multi-purpose what of a statute penalty provided by than for statute. jeopardy subjected should be to double pure it is analysis. acknowledge We presents

The current case therefore two relied whether or not the First, speculation questions. we must determine to con felony-murder instruction upon Pryor whether two crimes for which Nevertheless, petitioner. possi vict the was convicted are the same offense under so, upon did indeed Blockburger bility rely test. If we must con- that the that the legislature requires sider whether the Tennessee in- instruction fourth alterna- Alien, ty 140, 147-49, Although Pryor object felony- v. Court 2. did not to the 442 U.S. 99 S.Ct. trial, procedur- 2213, 2219-20, (1979). murder instruction at he is not 60 L.Ed.2d 777 More- ally raising barred from over, the issue in federal appellant procedur- has not raised the Appeals court. The Tennessee Court of con- al default issue. question on the merits. See Coun- this sidered 530 held, however, statute scrutinized have the felony-

tive of the Tennessee courts willfulness, Bloekburger test.3 murder allows deliber- provision under the ation, to be premeditation sup- malice circumstances, assault most Under plied the commission of underlying degree first with intent to commit State, felony. v. 555 S.W.2d Claiborne to commit robbery and assault with intent State, 419 n. 1 Tosh v. (Tenn.Cr.App.1977); offenses deadly weapon with a are different (Tenn.Cr.App.1975). 527 S.W.2d 148 Bloekburger because meaning within the we hold that the crimes for Accordingly; fact which the requires proof each of a were the petitioner which the was convicted other The elements of assault does not. Bloekburger same offense under the test. degree with intent to commit first us to discuss requires This conclusion (1) are: intent to commit deliber whether has legislature Tennessee ate, premeditated killing malicious and these of- clearly indicated a desire (2) an Ann. overt act. See Tenn.Code in cumula- punished fenses nevertheless be 2402(1). intent 39-604 and Assault with §§ tive fashion. The statute itself contains no robbery deadly weapon commit with a indication of intent and the specific (1) contains the elements of: intent to com appellant any legislative has not cited histo- mit robbery (2) involving an overt act ry. appellant correctly argues, how- the use of a deadly weapon. See Tenn.Code ever, pronounce- that we must consider the Ann. present 39-607 and 3901. In the §§ Supreme ments of the Tennessee Court on case, however, the felony-murder instruc Hunter,- subject. Missouri v. See tion degree allowed intent to commit first -, 673, 679, 74 U.S. 103 S.Ct. L.Ed.2d supplied by finding to be of intent (1983). robbery. commit Under these circum stances, proof of assault with intent to com Briggs, 292- State S.W.2d mit degree murder no longer required (Tenn.1976) I), the court made (Briggs proof of a fact which assault with intent to following construing statement Ten commit robbery deadly weapon did nessee’s first murder statute: not.4 authority We find neither reason nor

The appellant responds that under the holding that one who commits murder felony-murder alternative of Tennessee’s a perpetration felony the of statute, the prove 39-2402(4) state still had to willful- in the named T.C.A. cannot § ness, malice, deliberation and none of which punished or should not be convicted and it had to prove in order to obtain a convic- the in the for both offense of murder tion for assault felony. with intent to commit rob- and for the named degree bery deadly with a weapon. Nothing statutory The Tennessee in the definitions of dissenting opinion approve jury 3. The contends that the felo- dissent of would instructions con- ny-murder taining potentially confusing instruction was a mere to citation a irrelevant and ma- legal concept purpose explaining specifically judge “for the of terial unless trial told the distinguishing jury purpose the indicted offense” and that to consider the material. The of judge jury course, jury clarify trial did not invite the “to con- instructions of felony language sider the jury as a basis for applicable issues to inform the of the against Pryor....” disagree. a Jurors, verdict We are in the law. law, who unskilled criminal judge The trial nowhere indicated that the ref- be misled irrelevant instruc- should not felony erence to in included determining tions or burdened with the task of willful, deliberate, order to differentiate it from pertinent which their instructions are premeditated malicious and murder. To the which are not. contrary, clearly the court instructed that first degree proven judge given felony-mur- murder could be under two theo- 4. Had the trial not ries, felony jury one of which was murder. The instruction and had the der nevertheless Pryor offenses, therefore was felony petitioner “invited” to convict theory. on a convicted the of both judge could have ordered the sentences to be situation, consecutively. served In that problem A po- second in inherent the dissent’s robbery sup- could commission not have sition is that even if it were assumed that the plied commit first felony-murder the intent to murder. surplusage, instruction were

531 degree and of the tioner to jeopardy. judgment murder in the first double The 39-2402(4) indi- the district court is Affirmed. felonies listed in T.C.A. § legislative cates a intent that conviction KRUPANSKY, Judge, dissenting. Circuit punishment for both offenses should majority opinion Because the simply permitted. not be might discourse on what have been if Pryor Thus, in- Supreme the Tennessee Court murder, had faced a charge felony I legislative permit ferred intent to consecu- respectfully must dissent.

tive sentences from the absence of evidence Pryor was indicted on separate charges of subject. approach wholly on the This assault with intent to commit Whalen, unacceptable under which requires murder in the first degree and assault with legislature “clearly indicate” that intent to commit robbery deadly permissible consecutive sentences are for weapon. majority As the forthrightly con- offenses which are the same under cedes, these offenses are “different offenses Furthermore, test. Blockburger if lack of meaning within the of Blockburger because evidence of intent were to constitute a clear requires proof each of a fact which the indication a desire to cumulate punish- other does not.” Maj. op. at 530. ments, then consecutive sentences would fact, Notwithstanding this the majority automatically permissible under most makes pivotal assumption that a mere proscribing statutes offenses which are the explanatory to the reference notion of felo- same for jeopardy purposes. double Such a ny murder in the instruction in some result would render the Whalen require- manner amended the concededly proper in- ment meaningless. placed Pryor dictment and in jeopar- double we Secondly, Briggs note that I subse- dy. Plainly, only if the is correct majority quently State, was overruled in v. Briggs in its assumption charges against 573 157 (Tenn.1978) II). S.W.2d (Briggs Pryor literally were or effectively amended appellant responds that I was Briggs may the then majority proceed compare overruled because of a misapplication of assault with intent felony commit mur- Oklahoma, Harris v. 97 U.S. S.Ct. der and assault with intent to commit rob- (1977), 53 L.Ed.2d 1054 and that bery purposes of Blockburger. state court Briggs II did not retract its Beeler, As was stated United States statement concerning legislative intent. (6th Cir.1978): F.2d Even assuming that the statement concern- A variance proof occurs when trial ing legislative intent in Briggs I remains materially differs from the facts alleged good law, question debatable which we do contrast, in the indictment. an reach, the statement fails to satisfy the amendment involves a change, whether Whalen standard. We therefore hold that effect, literal or in terms of legislature Tennessee has not clearly indictment. indicated that consecutive sentences are bar, In the case at the despite majority’s proper in the situation presented by this reference to problem “the of a variance case. between the indictment and the in- jury

struction,” maj. op. at there is no IV. evidence in the trial record that the State proved attempted or even to prove any fact application Since of the Blockburger at variance with the facts in the related test to the felony-murder instruction com is, stated, indictment. The issue as whether pels the conclusion that the crimes for jury the instruction the amended indict- Pryor which was convicted are the same by ment placing Pryor at risk of conviction offense, and since the state legislature has felony for murder. not clearly indicated that these crimes punished should be fashion, in cumulative in Bearing mind that Pryor was indicted giving the instruction subjected peti- for “premeditatedly” intending to murder it Winbush, precede if and that the It is sufficient uncontradicted testi execution. mony of the victim established that Pryor assault, short howsoever the actual had “I’m kill going you,” said to the trial be; length for may time interval of charge court’s must be evaluated in its to this element essence of is not the of time tality proper weight to determine the to be to kill is purpose And the offense. of this challenged language. accorded the Haislah of legal in the sense premeditated, no less Walton, (6th Cir.1982). This 676 F.2d deliberately formed term, if it were when, here, as the de particularly is true killing, than if before but a moment object to the assert timely fendant did not before. The formed an hour it had been edly improper passage. United States v. time, at the of the assailant mental state Piccolo, (6th Cir.1983). In the 696F.2d act length of time the rather than bar, of purposes clarity case at is the mate- may premeditated, have been its comparison, the trial court commenced question point rial to be considered. defining assault with intent to instruction the mind of “Was of importance murder with a cita premeditated commit assailant, killing, at the moment of the so incorpo tion to the statute at issue which passion or as to far free from excitement rates, alia, inter the elements necessary conviction for both support a as before capable premeditating, be of any murder and murder. Without in felony explained, party and was the death of the inviting manner to consider the object sought accomplished slain the to be felony language as a basis for a by slayer?” against verdict the court immediate Pryor, Further, components a review of those of ly instructed the as to the critical the instruction which addressed “assault to difference between the indicted offense and degree” commit murder in the first felony murder: “malice,” as that term used in the The distinctive feature murder murder, leave no doubt that definition premeditation, is and in- the trial judge felony solely cited as previously design, volves a formed or ac- background explanatory or material.1 At tual intention to kill. It is not necessary the jury no time did the court inform design that such should have been con- felony sup- an assault committing ceived preexisted any or in mind for period definite of time anterior plies requisite to its malice for murder. charge 1. These sections of the are as follows: MURDER ASSAULT TO MURDER IN THE COMMIT any person, Murder thus defined: “If FIRST DEGREE discretion, memory unlawfully This offense is thus defined the statute: sound kills shall, feloniously, “Whoever and with malice any being, reasonable creature in and under the aforethought, any person, assault with intent to State, peace aforethought, with malice degree, commit the first or shall express implied, person be either or shall administer, attempt give, any poison or or guilty Murder.” potion purpose, though for that death shall not another; injury Malice is an do an intent to ensue, shall, conviction, imprisoned be on design doing formed in the mind of mischief penitentiary not less than three nor more to another. twenty-one years.” than murder, A case of homicide cannot be unless definition, clear, as- From this it intent, killing at and before the the wicked malice, express sault must be made with as constituting aforethought, malice exists in the assaulted, explained, party above toward the so slayer. mind of the . assault, that if death result from the the crime express implied. Malice is either In homi- degree, would be murder in the first before the cide, against per- express malice is malice party assaulting can of an assault killed, slayer son and the have malice must with intent to commit murder in the first de- killing against the deceased in order that the be gree. clear, equally It is that all of the ele- cases, degree, in the first and in some degree, ments of murder in the first must exist express an of in malice is element assailant, in the mind of the at and before the degree. Second assault, justify time of the to a verdict of of an assault with intent to commit murder in degree. (Emphasis supplied) the given mandate a to the fact, clearly contrary instruction and the instructions belie the have utilized the commission charge, and thus could of malice finding express without of the to malice.2 jury, felony supply assertion that majority’s pre-existed in mind for the various been conceived or as it relates to 2. The instruction entirety: types any period in its time anterior its execu- of homicide states definite of to precede It is if it the actual tion. sufficient MURDER assault, any person, short the interval of time of howsoever thus defined: “If Murder is discretion, unlawfully may be; length memory kills of time is not the es- sound and being, any in and under the reasonable creature this element of this offense. And the sence of State, aforethought, peace premeditated, malice purpose of the with in kill is no less to express implied, person shall be term, deliberately either or legal of the it were sense if guilty of Murder.” killing if a moment before the than formed but another; injury is intent to an to Malice an do mental formed an hour before. The it had been doing design formed in the mind of mischief a time, than the assailant at the rather state of to another. may pre- length of time the act have been the meditated, be murder unless A case of homicide cannot point con- is the material to be intent, killing and before the the wicked at constituting is, question importance “Was sidered. The of aforethought, exists in the malice assailant, of the mind of the at the moment the killing, slayer. mind of the passion or so far free from excitement express implied. In homi- Malice is either or capable premeditating, of as before as to be explained, per- express against the cide malice is malice party slain and was death slayer son and the must have malice killed object sought accomplished by the to be killing against in be the deceased order that slayer?” cases, degree, murder in the first and in some Ill express malice is element of murder in the an MURDER IN THE SECOND DEGREE degree. second principal in the The element of murder Implied against party malice is malice not explained, degree malice. As before second is slain, general, but malice in or that condition in the first feature of murder the distinctive slayer a wick- the mind of the which indicates express degree premeditation, malice is an is ed, depraved malignant spirit, and and a heart crime, equally and element of that essential duty fatally regardless to social and bent on always premeditation before must co-exist mischief. against the defend- crime can be made out II malice, any Express disconnected with ant. MAY BE FUR- MURDER FIRST DEGREE kill, may design previously also be an formed to THER DEFINED: THUS of murder in the second de- essential element gree. in the first “An individual commits murder case, however, killing must In such degree if: proof Where the unlawful and malicious. willful, (1) He commits a deliberate and mali- design and intend the defendant did shows that murder; premeditated killing cious and or or deceased, design if the kill the still (4) He a deliberate and mali- commits impulse passion, upon sudden formed a killing perpetration cious or murder provocation, adequate and disconnect- without arson, any rape, robbery, burglary, larceny, any design, previously and if formed ed with kidnapping, piracy, aircraft or unlawful throw- maliciously, willfully, it would be executed ing, placing, discharging or of a destructive degree. in the second device or bomb. Implied murder in the malice is an element of killing When the act of is not done necessary degree. constitute Malice second commission of some one of the felonies named degree is not confined to murder in the second above, in the definition of murder in order that any particular to take the life of an intention degree, killing it be murder in the first must killed, actually person intention but includes an is, willfully, purpose, be done with the may probably any unlawful act which to do party intent that the act which the life of the depriving person not of life. It is result in taken, effect; deliberately, should have that properly spite to the individual or malevolence is, maliciously, purpose; that is, cool design general particular, but an evil aforethought; premed- with malice and with —the wicked, depraved malignant of a itation, conduct design kill must be formed spirit. performed by before the act is which death is Therefore it can be seen that of malice afore- words, produced. proof In other must be ad- thought, applied murder in the as to cases of satisfy duced to the mind of the that the degree, is that it is confined to party second death of the slain was the result ultimate blood, will, homicides committed in cold with settled concurring pre- which the deliberation and design premeditation, but extends to all party sought. meditation of the accused be, cases, may when how sudden occasion in the first distinctive feature of murder premeditation, previ- act is done under such cruel circumstances and involves a wicked, ordinary ously design, kill. as are the indications of a formed actual intention to malignant spirit, necessary design depraved and as when the It is not should have that such 534 F,2d Carlson, v. 446, (9th States authorities discloses 447 the case 616

A review of indeed concepts argu Cir.1980) (“the was invited legal jury to that mere citation urged” language to utilize the additional the indictment for scope of ably beyond the Smolar, v. United States conviction); for distinguishing the or purpose explaining 13, (1st Cir.1977) (court 557 F.2d in- 19 not, alone, standing the is indicted offense jury structed to consider additional offense an amendment of sufficient to constitute indictment.) despite variance with the Windom, v. the indictment. United States judice, by sub trial court in the matter Cir.1975) (5th (including 510 F.2d 989 defi comparison, clearly jury instructed the to “forgery” prosecution “pub nition of in for consider the instructions insofar as forged lishing uttering” previously and they bore the offense “as upon particular of the in merely explanatory checks was in of the indict- charged the First Count Alaimo, United v. offense); States dicted ment.” denied, 604, cert. (3d Cir.1961), 297 F.2d 607 829, 7 L.Ed.2d 784 U.S. S.Ct. Moreover, which had a jury, copy (1962) (although “explanation” par jury the indictment room its ticular charged “may may offense or not deliberations, the following returned ver- have necessary,” been it constituted no dicts: change from what was in charged the in their oath do Jury upon say: [T]he dictment.) These cases stand in contrast to “We, B60818: the jury, DOCKET NO:

those actions wherein a jury instruction was guilty find the defendant of an assault held to have amended indictment. in intent to commit murder the First cases, the court specifically directed charged as in the first count of Degree jury charge. consider an additional the indictment and fix his punishment Jones, See United States 647 F.2d 696 imprisonment penitentiary in the state denied, Cir.), cert. (6th 454 U.S. years for not less than 6 nor more than 21 United (1981); S.Ct. 70 L.Ed.2d 214 years.” punishment by party, upon inflicted even defendant of murder in the second de- provocation, outrageous gree. in its nature and continuance, beyond proportion and all to the IV offense, maligni- so that it is to be attributed to VOLUNTARY MANSLAUGHTER ty brutality, infirmity. heat, upon and rather than If one man kills another a sudden deadly weapon, by by produced adequate provocation, upon Where the use of a as if party shown, killing, clearly quarrel persons fight and the death is sudden two and one kills proof other, and, voluntary manslaughter; shown in the to have resulted from its this is by slayer, weapon may general, person use the use of such if a is struck strikes by jury blow, again, be considered killing to establish that the and death ensues from the it is maliciously; voluntary manslaughter, regarding done that with that the law required support provocation malice in .the blow as sufficient to excite the degree. passion, second killing imputed But where the death and its and the act of will be manner, surrounding accompa- passion, and all the and to heat of blood and rather than mal- nying ice, proof, by advantage circumstances are shown in the if no undue be taken presumed, party heat, doing killing.

then malice is not but the are to The sudden facts, distinguishing determine from the whole whether or not which is the characteristic of present offense, produced by it was adequate as an element in the offense. this provocation, must be deadly general being Malice cannot be inferred from the the true rule alone; must, act, intent as when one from evident neces- reason at the time of the be dis- sity willfully life, by passion kills might another to save his own turbed to an extent which harm, great bodily ordinary discretion, or to save average himself from and render men of fair danger rashly, is imminent and immediate. Much liable to act or without due deliberation reflection, less can malice be passion inferred when the intent and from rather than produced by anger; kill is judgment. if charged it were sudden If the act of the defendant upon provocation, killing reasonable impulse in this case was the result of murder, manslaughter. would be passion, but upon excited sudden heat and ade- Implied malice, express quate provocation, malice and as above the idea of malice is re- explained pelled, and limited are both elements of and the assault is an assault with intent degree, murder in the voluntary second manslaughter; provided one or the to commit always proof other must resulted, be established if death had the crime would justified before the finding voluntary will manslaughter. have been “We, jury, DOCKET NO: B-60819:

find defendant of assault with robbery deadly

intent to commit

weapon charged as in the indictment and punishment imprisonment

fix his penitentiary of the state for not less years

than 10 nor more than 21 years.” added).

(Emphasis strongly supportive

These verdicts are are principle juries presumed instructions; here,

follow the court’s Pryor’s guilt

instruction to consider or inno- as to charged

cence as

in the indictment.

Inasmuch as the trial court’s reference to

felony explanatory, murder was an and not indictment,

amendment of the I conclude

that the majority was without warrant to

address hypothetical implication of

Pryor’s exposure charge to a of felony mur-

der. Accordingly,I would Reverse the dis-

trict court deny entry of the writ.

NATIONAL LABOR RELATIONS

BOARD, Petitioner, SHOPS, INC.,

HOMEMAKER

Respondent.

No. 82-1646.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 1983.

Decided Jan. 1984.

Case Details

Case Name: Robert Earl Pryor v. James H. Rose, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 6, 1984

Citation: 724 F.2d 525

Docket Number: 81-5401

Court Abbreviation: 6th Cir.