Tatum v. United States

CLARK, Before PRETTYMAN and BAZELON, Judges. Circuit BAZELON, Judge. Circuit Appellant Tatum, twenty-seven Ernest laborer, year old pleaded guilty” “not rape an indictment charging him with the complainant, year a nine old female child.1 Because was without employ means counsel, ap- the court pointed member of the bar to conduct Upon trial, his defense. returned “guilty” verdict of they to which added “with words penalty” death ac- cordance with their authority under the statute. presented by prosecu-

tion revealed that was invited to prosecution guilty, 1. The was (1940) under if it be penalty,’ words ‘with the death provides: punishment § D.C.Code 2801 which case the knowledge carnal of a shall be death “Whoever has electrocution: Provided forcibly against will, further, agree her That female fail to carnally punishment knows as and abuses a female the verdict of years age, punish- shall be shall be child sixteen received and the imprisoned thirty imprisonment provided more ment than shall years: Provided, That this section.” ease verdict, rape add their 61á Appellant arrived apartment friends. He took the stand testified

visit the after- joined at the house at about m. on the the child’s him and mother p. July 29, way up apartment to his friends in the noon of 1949. On his latters’ for a visit, apartment during he short time drink- he intended to the afternoon of ing. stopped apartment be- This was He on the floor denied mother. in at mother, further complainant very testified that she hostile low where the and her was past years, toward him as a he for about three result of a intimate whom had known minutes, relationship the moth- between them. It was be- lived. After about five his that, reason, lief for it er asked him to leave because seemed she drugged him during drinking. pres- He the time she was clear to her that he had been ent at the complied drinking pointed bout. out friends. He continued on “doped” that he felt drinking he had been There is that he was when he left his at whiskey during the of the friends the end of and beer course afternoon. p.6 of the afternoon. At about m. same day, yard in front of he went down to the essence, however, the entire defense complainant building child where the upon appellant’s rested that he insistence playing, ¡by arm, was took her told remembered nothing happened of what at obeyed her to come him. with She he the time the offense committed. Much was place her to a near rail- secluded led of the record below devoted to that con- tracks, road ten twelve blocks some or Nevertheless, tention. counsel for the ac- ¡home. away kept from her in that He her request cused failed to that the issue of vicinity during hours several which sanity e., legal responsibility for his —i. time he had intercourse with her once and acts—be to the under the submitted slept intermittently. approximately At guidance of instructions. The court did following morning, 1:45 the he took her subject charge. not mention the in its And exception no taken occupied was such omission. dwelling basement only questions urged appeal on this Coppedge. he Miss While Jessie a n as basis for reversal (1) improper bathroom, Coppedge Miss noticed that the exercise au- statutory telephoned bleeding child and at once thority death; to sentence defendant (2) ap- arrived, police. Before officers the trial court’s refusal grant’ a continu- through pellant fled the bathroom window. requested by ance defense counsel in or- morning, eight At about o’clock same produce der to an additional or witness Coppedge appellant telephoned Miss two. requested lend him two dollars that she Ordinarily, failure of counsel to place. bring designated him at exceptions record his charge ap- police then called the who agreed, She points constitute a waiver of the not prehended previously child had him. The always raised.2 It has been the custom hospital she re- where taken to the been court, however, of this “in cases seri days because of the for fourteen mained offenses, ous criminal carefully to check upon the act of inter- injuries attendant prejudicial the record error to defend 3 ant which he did urge.” not course. This accords States, 1942, Rules of Crim- of the Federal v. 30 Williams United 2. Rule 76 U.S. U.S.C.A., App.D.C. provides, 299, 300, 21, 22; 18 Procedure. inal part, pertinent States, 1942, McKenzie v. United 75 U.S. assign App.D.C. may 270, party 271, 533, as error 126 “No F.2d charge portion States, or omission there- 1946, Accord: Fisher v. of the United objects 463, 467-468, before 1318, thereto 328 unless he U.S. 66 from S.Ct. verdict, 1382; States, consider its 90 retires to L.Ed. Screws v. United 1945, distinctly 91, 107, stating 1031, which the matter 325 U.S. 65 S.Ct. 89 objec- 1495; grounds objects Atkinson, of his L.Ed. United and the States v. 1936, 391, 297 U.S. 56 S.Ct. 80 tion.” 555; Clyatt States, 1905, L.Ed. D.C. v. United Villaroman See 207, 221-222, Cir., 262-263. 197 U.S. F.2d S.Ct. Rules of from the with of the Federal end 52(b) Rule beginning necessary Procedure, applies every that and provides element Criminal which pros- substan- constitute crime. affecting Giving “Plain errors defects they ecution, although may where the defense is rights tial be noticed way proof presump- were not benefit in the to the attention sanity, question such tion in court.” The basic favor of the vital plea from scrutiny errors the time a en- the record is whether the verdict, “substan- tered until return discovered affect rights.” tial whether all the part Failure on the whatever adduced, guilt beyond a side court in criminal case to “instruct all is established questions doubt. If the whole essential of involved reasonable Taw case, supplied requested including by presumption that whether or not”4 sanity, beyond of clearly within not exclude rea- rights” “affect substantial does appel- hypothesis meaning sonable doubt the of of 52(b). Since Rule adduced, proof is went of his some the accused lant’s defense responsibility acquittal specific entitled an no is mental and there was charge charged.” thereto to offense of these au- reference court’s view thorities, sanity whether it seems clear jury, (1) we must determine to us that which, actually is question, (2) an “essential” issue if that issue was an “essential” is, litigated sufficiently proof “some ad- whether raised —that require support duced” tending the defense—- evidence submission must be submitted jury. guidance of instructions. capacity

When lack of mental crime, as a defense charge aware, raised course, that at accepts general experience the law tempt quantitative to formulate a measure presumes mankind that in people, the amount necessary to evidence cluding crime, those accused of are sane. produce an can raise issue more than no But as soon as “some evidence mental illusory an definiteness. But if some such introduced, prevailing rule disorder attempted, measure is to be we think the jurisdictions sanity, in most like approach expressed by best us in fact, proved part other must be States,8 as v. United prosecution Kinard prosecution’s beyond case a reasonable murder in which trial judge had not That is the doubt.”5 rule followed manslaughter “ submitted the issue of Supreme Court this court.6 The jury. said there ‘The evi authority subject leading on the v. Davis might appear dence to the court to sim States,7 Supreme United where Court ply overwhelming show kill “Strictly speaking, the burden of murder, said:- ing was fact and not man ** * performed proof prosecution slaughter on the act or an in self-de- 726; States, v. States, 1895, 9 6. L.Ed. Morris v. United Davis United 160 U.S. 1946, 525, 527, 469, Cir., 486-488, 353, 499; F.2d 169 A.L. 156 16 S.Ct. 40 L.Ed. 305; Battle v. United Cir., States, 1908, Levy, United 3 R. States v. 209 U.S. 995, 1946, 36, 38, 422, 670; 153 28 F.2d S.Ct. 52 L.Ed. v. United Holloway States, 1945, 80 U.S. Cir., States, 1926, 2 v. United 4. Kreiner App.D.C. 4, 3, 665, 148 F.2d 666. See 722, 731, quoted in Kinard v. 11 F.2d v. Cunningham 1879, State, also 56 Miss. States, 250, 1938, App.D.C. 68 United People 269, 274-276; Spencer, 1904, v. 522, 524; 252, F.2d United 96 Screws v. 408, 461, 462; Miller, 72 179 N.E. N.Y. 106-107, States, 1945, 91, 325 U.S. 65 S. (1933). 135—136 Law Criminal 1495; George 1031, 89 L.Ed. v. Ct. States, 1942, U.S.App.D.C. 197, Supra pages 6, 487-488, 160 U.S. at 75 note United 559, 563; 201, United 125 F.2d Miller v. 16 S.Ct. 353. Cir., 1941, 120 F.2d 10 1938, App.D.C. 253-254, 68 quoting v. 522, 525-526, Glueck, from Crim- Stevenson Mental Disorder and the States, 1896, (1925). 162 U.S. United 41—42 Law inal 40 L.Ed. S.Ct. fense, yet, long through- there was some police so sion continuing as consistently evidence relevant to the issue man- out below, the trial appellant slaughter, credibility force of nothing maintained that he remembered such evidence jury, night. must be for the and what had transpired on critical cannot be matter of the decision Murphy, Coroner, law for Deputy Dr. testified ” [Emphasis supplied.] the court.’ when before day him for examination the after We think it incorrect infer would be crime, “The appeared me man to be language from the Holloway Grant, more or less of trance.” Officer States9 that the “evidence sufficient who arrested aft- morning on the gov create a reasonable doubt” test is to normal, er crime, said “he didn’t act purpose determining ern for when .the in my estimation.” There tes- was also an instruction The refer given. should be timony regard to from Officer Howe with in that na ence case was addressed to the appellant’s appearance “abnormal.”13 ture of the instruction rather than to And, trial, on several occasions during the making state of the it “essential” prosecutor asked Government witnesses given. that it be A rule that an instruc “normal,” appeared whether had only given tion should be when an accused “insane,” indica- etc.14 But the clearest presented evidence “sufficient to create appellant’s tion sanity actually was in give doubt” the reasonable would tend colloquy issue between is in the revealed presumption sanity greater effect than prosecutor the court and when the court appears to have been intended in the Davis inquired whether there had been a mental case, Holloway. The re relied in prose- examination of the accused. The sult be to remove then, replied cutor had there been and sanity despite from the the fact that discussion, after some said: support proof “some is adduced” in believe defense, liberty to prosecution as it wishes.10 witnesses, including and even reject experts —to though opinion believe jury is at and dis accused, him. ^[*] here, I think retti, and Dr. Gilbert if he also examined Mr. Heflin. ^[*] I ^[*] am going In view of ^[*] to call ^[*] Dr. defense ^[*] Per-' ^[*] sum, Mr. Heflin. taking position the function trial If he regard sanity court in that he to the issue is insane. brought to determine that issue is whether The Court. I think it be useful is, by

into the case evidence. If it then to call them in rebuttal. That won’t take tions. be an testimony at pellant’s nation of the record committed doubt of the defendant’s it should be submitted to the structions acquittal. jury under From -sanity that if was trial to the moment at the time the sufficiently convinced require that the guidance sanity, has by raised his issue offense our exami submission there must reasonable apprehen- with in instruc by was ap the time the crime was committed and at was long.15 to have been the defense. Thereafter, that. There called think there Mr. conceived, by Heflin: ^ the Government to rebut what the two was of something wrong mentally.16 s|c a possibility and what we also Yes, “sound ^[*] I psychiatrists think I better do They ^[*] mind” both at jury might testified believe, # ^[*] page p. 148 F.2d 665 at 9. 80 12. Tr. 127. pp. 13. Tr. 141-144. Moore, 1938, 42 N.M. 10. State v. See, g„ pp. Ill, e. Tr. 34; Branson, Instruc- 1 Reid’s P.2d pp. (1936). 15. Tr. 196-197. § to Juries tions p. p. (emphasis supplied). p. also Tr. 109. See Tr. Tr. com- judgment?” pass it is to which de- Gilbert Dr. examination.17 the time of the court- by instructions plete absence memory as lapse of alleged scribed sani- appellant’s issue essential no find- made Dr. Perretti malingering but and. reversed case be sug- ty requires that It was case.18 ing that that was trial. for a new remanded mani- those symptoms such gested that in be found appellant might fested matter, noil is another think there amnesia, from person suffering alcoholic by our examina-' here revealed urged that he experts but both testified record, which affected substan tion a condition.19 from such suffering been from It stems rights tial accused. that, testimony after However, was there made defense counsel a statement time kept for some arrest, was Tatum fol attention to our per- disturbed “special wing, where judge’s charge lowing reference in in' and several placed jail,”20 sons counsel, jury: com with Defense of Gal- department days psychiatric in candor, who indeed a difficult mendable has linger Hospital.21 said, case, in this admits task as he has proper that a verdict of under the to characterize not intend We do the evidence circumstances and strong either the defense as for case case.24 While admission counsel unnecessary, “in That weak. appear portion does not of the tran entitled criminal cases the defendant is below, script the trial certain of his re to a presented relating instructions support of motion for marks new theory of defense there closing in the that it made indicate though even foundation argument jury.25 may weak, insufficient, in be the evidence credibility. consistent, court, He or of doubtful At the de- argument before this explain why have even to such instructions fense counsel was asked to he entitled of though testimony support the sole made an sub- had such admission. In 22 present stance, the laboring defense is his own.” the he that un- stated he was involving possible pen handicap representing- case—one death the ac- der of one alty jury nothing the grave gave was told about of a crime who no infor- cused —the insanity. they may defense of For mation or of a assistance because claimed known, might lapse memory; Tatum have le thought been of that while he gally yet sane, insane and been they might would have the accused be con- legally required responsible, “abnormal”; him legally to hold so sidered him to be 'that the they long as believed he had committed force of case the Government’s indicated constituting acts charged.23 the crime danger jury agree extreme that the As impose penalty; we said in Williams v. United the death that an at- 299, 301, tempt get jury consider defend- 21, 23, by jury peers supposed abnormality mitigation of punish- “is ant’s safeguard our institution of penalty fair trial ment and avert extreme impartiality. coupled But of more if it insuring what val effective with mind, know, open ue is guilt; an if it does candor of a not concession delineation, with not upon practice clear an uncommon issues 209-210, 17. that fact in their 228-229. verdict so commit- CTr.PP. to a mental ment institution follow. 210, 214, pp. 18. Tr. 229. Crowe, 1909, State See 39 Mont. 212-213, pp. Tr. appellate 19. 231. 102 P. where the court reversed the court because it p. 20. Tr. jury they bring had not told could p. 21. Tr. guilty by “not verdict reason of insanity.” Am.Jur., Trial, p. 22. 53 § p. 24. Tr. § It be noted that 24 should D.C.Code requires jury acquitting that a on the 25. Tr. on Defendant’s Motion for New p. ground Trial, insanity forth sole must set bar, circumstances, assume rights.” these tial not, im- We course, are this calculated risk of a upon in the hazards general conces- plying restriction trial; good criminal and that he by counsel, acted sions are of which not some faith upon judgment. only best proper highly commendable. problem The confronted judge’s The refer learned trial counsel jury ence, when he faced the for summa charge, course of his tion although was created the fact approval concession guilt indicated functions, deter jury two one method his at selected counsel in guilt and the to tempt mine or innocence other problem. Ap difficult resolve a sentence, pass upon death there is no parently counsel’s upon defense relying procedure jurisdiction spe matter, in this view of established the court did not effectively that, establish which he cifically jury could caution notwith concession, ca difference in mental standing the standards the unauthorized applicable body pacity the two functions. So defendant to have was entitled went, practice far as the accustomed innocence. guilt alone determine his only unintended, capacity he effect instruction on mental Although perhaps hope practical pur was, court was could secure from for all omission legal sanity. only an That in poses, instruction on with leave was, held, necessary adding question agree struction we have whether it could upon but it was This penalty.” the state of the death the words “with the guilt rights.” “affecting was a controlling only defect substantial sentence, under or innocence. death unmindful of the States,26 of Winston v. doctrine United. import con reversing criminal serious “the sound discretion was within particularly viction. true here in This is alone”, jury, and in consid and of the charged. view of of the crime the nature sentence ering imposition of that legal tech But it is not because of “mere weight to considera give the remand nicalities” we order sex, illness, or ignorance, in ‘.‘age, tion— here with this case. concerned * * * toxication, other consid preservation safeguards of the which rest this, the In of view eration whatever”. upon dignity our faith in the worth and that it not jury opinion of might be purpose of the individual. Their to in punish impose capital to just be or wise equal Thus, justice sure under law. their instruc Lacking precedent for an ment. vitality depends upon being their assured line, that counsel jury along tion to the persons, all even those of accused the described. have course we selected the reprehensible injury most crimes. And the too far. His so, he went we think Even resulting from their denial is not lessened guilt. On the con conceded client not had even aegis when it occurs the of an seen, of an issue men have trary, as we able and conscientious bench and bar. coun When had been raised. capacity tal application Their necessary pre here to that a verdict of jury sel conceded possibility punishment vent the that will away that proper, he conceded was imposed upon be may one who be without court-appoint by of action Thus, defense. power the to reason and therefore not deprived of counsel, appellant the was ed subject be to blame.28 jury upon the defense he the of judgment appellakit It be noted that if should credibility the also advanced had ultimately acquitted on retrial of case. think because prosecution’s of the not be he need set free but this case the action of the circumstances institution,29 be committed to mental a “affecting a substan- was counsel defect v. Holloway 303, 212, 215, 43 1945, 1899, U.S. 19 S.Ct. U . S.App.D.C. 3, 4-5, 665, 148 F.2d 666- L.Ed. and authorities collected discussion 27. See 1945, Welch, provides, § 24r-801 of Diggs D. C. Code “ * ** person if an accused shall be re- most society one Hayes, ablest C. of the satisfying the interest thereby Bar. this at spected practices members who safety public and in both in own state- Hayes, to his Mr. according offender. rehabilitation of the court, said ment this Court said concern- what have In view of we any evi- to find able had not been he appeal, we disposition of this ing the crime to the commission dence as issues unnecessary consider deem it certainty appellant’s negatived and discussed which were raised theory ad- except fetched the far guilt here. briefs filed that he appellant himself by vanced new trial. remanded for a Reversed and doped the mother have been mistress. formerly been his had child who CLARK, Judge (dissenting). Circuit sup- There was not a shred of evidence truly my opinion dissent. In this I Hayes theory. therefore port this Mr. decision, shocking that shocking the most guilt adopted strategy admitting ranking emanated from Court and has this penalty. death trying avert the deci- judicial most among the shocking strategy even my opinion was sound this step It one below the famous sions. though prove in this it did not successful Missouri, Supreme decree Court of Hayes accordingly frank- case. Mr. stated outright many years ago, it when reversed defend- ly believed degree ground first murder case on adopted guilty. ant this The trial court grand inadvertently that the left defendant’s counsel statement from out the word “the” in the indictment. incorporated charge jury. in his it necessary It not recount in majority’s is the com- gist This horrid revolting details most of crimes. freely plaint. I admit that court raped say Suffice it to that the defendant perhaps to telling censured nine-year-old a little child. He offered guilty, that Tatum even after the was scintilla evidence in own defense his counsel, but in- admission his own I except say that he could not remember sist that it was not reversible error because what had occurred. the circumstances the case and at time when the of sex Here wave theory being which it was de- on tried alarming reached such an ex- crimes has repetition fendant’s If the counsel. Bar, prosecut- Congress, tent that certainly error it harmless error. public officials, press ing point majority other labored been aroused as never before the neces- erred, Judge failing Holtzoff out, sity stamping it remains for the wholly motion, give, own an un- highest jurisdiction court this to flout asked for instruction that the Government necessity for reversing reform by this prove sanity beyond had to Tatum’s a rea- technicality flimsy case on a so and un- sonable doubt. Under doctrine of Hol- sound it had be evolved of the out S., 1945, loway v. U. inner consciousness of of the member “the burden is on the majority. presumption to overcome the accused ¿This apprehended by appellant was the sanity by evidence sufficient to create day the commis- police following on the capacity reasonable doubt as his mental testimony The of the crime. sion to commit offense.” defend- When the appear was that he police officers did prose- up defense, ant thus set has they men do when New “normal”. sanity must cution establish hangover. a bad only It after accused. this situation arraigned, stated he exists that the defendant becomes entitled When employ an instruction the jury counsel. The to funds must be- was without George beyond sane thereupon appointed Mr. E. lieve that a reasonable Court fact acquitted by insanity, the Federal the court jury solely Security on the Administra- certify ground tor, ^[*] confined in the ^[*] who *_» may order hospital such for person insane, to be history newspaper, Insanity melancholy defense an affirmative doubt. asylums plain. like these The alleged proved cases all too must be They case no In this for the other affirmative defense. insane are. overcrowded. sgx except are by the need the criminals insanity has been room. These alleged few not an It received into majority of this Court. the institution wholly pro- discharged at cured—and the trial. The issue months issue same majority go right of this ceed commit created Court. out and again aggravated an possibly crime opinion majority climax of the form. following paragraph: “It should be ultimately noted with the case familiar retrial acquitted on 'because raped old murdered sex criminal who com- not be set free he need for here, caught a train girl one little institution, thereby to a mental mitted an committed a week Baltimore within society both in interest of satisfying identical crime there. safety public and in-the rehabili- a sad judgment my settled of the offender.” tation of the criminal day the enforcement childlike I have the I wish chil- of women and the.safety credulity law and such a state- to believe faith of Columbia. in the District enough to read dren old] But to one ment.

Case Details

Case Name: Tatum v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 5, 1951

Citation: 190 F.2d 612

Docket Number: 10540_1

Court Abbreviation: D.C. Cir.