United States v. David Wade Thompson
492 F.2d 359
8th Cir.
1974
Check Treatment

*1 359 judicial review of his claim induction, whether he had when Musser refused through preserved refusal of guideline v. would be from Ehlert unequivocal guessed to He or submission States, induction. F.2d 332 422 United refusing induction, to incorrectly but objection 1970), that conscientious right thereby regis- beyond hold that he forfeited a circumstance not objection Therefore, conscientious to assert his he was not control. trant’s right relegate to meaning claim ambiguity in would with faced Waldron, affirm his conviction chance. And to regulation that faced making punish him for argument would be insuffi- had and the mistaken, attempt reasonable, concerning proper albeit forum notice cient proper to as- forum in which open select the him. not to assert his claim process does not tol- his claim. Due sert not draw court did fact erate a result. such situa- Musser’s distinction between indicates situation and Waldron’s tion proper remedy Ordinarily, would considering the the court was permit be to vacate the conviction and Shock- with dilemma which Waldron Shockley to choose between submission ley faced. induction with the to and refusal of objec- knowledge that his conscientious the court did consider Since only preserved tion be claim would presented Ehlert here in either situation through But since the submission. the effect Musser, determine we must remedy expired, such would draft has Shockley’s conviction. dilemma pointless. be power Congress undeniably has the conviction is reversed. made, require that claims be instance, particular administrative Judge, NIELSEN, dissents. District ju availability of and to limit the bodies action review of administrative dicial judicial

particular For exam forums. 460(b) (3) precludes

ple, App. 50 U.S.C.

pre-induction service review selective except as a defense to

classifications prosecution re

criminal failure upheld port. Supreme has Court congressional America, proscription as a valid UNITED STATES Appellee, jurisdiction. control of federal 114, Estep 66 v. 327 U.S. v. (1946); 423, Fein S.Ct. L.Ed. THOMPSON, David Wade System Board No. Appellant. Selective Service Local 1062, 7, 365, 92 31 L.Ed. 405 U.S. S.Ct. No. 73-1650. approved And Ehlert 2d Appeals, Court of United States post-notice requirement consci Eighth Circuit. objection entious be asserted claims Jan. 1974. Submitted military induction. But once after Decided Feb. Congress exemption in created duction, process requires that some due registrant

opportunity afforded be

to assert his claim. Shockley

While it true that in which assert

was afforded a forum objection i.e., claim,

his conscientious review, given in-service he was not rea guidance identify sonable with which guess forum. He was forced to *2 Gerdes, Martens, Goldsmith,

David A. Pierre, May, Adam, D., Porter & S. for appellant. Larry Wald, Atty., Von Asst. U. S. Falls, D., appellee. Sioux S. MATTHES, Before Senior Circuit Judge, HEANEY, Judge, Circuit SMITH, Judge.* Senior District Judge. HEANEY, Circuit Thompson, David Wade an enrolled Cheyenne member of In- River Sioux Tribe, dian was indicted for the first de- * SMITH, Judge, sitting Michigan, designation. TALBOT Senior District Eastern District of put gree it near the barbed wire murder Alvin Mowrer on fle of Glen Thompson Cheyenne then stationed in viola- fence. Max River Reservation position keep He himself Mowrer 1111 and 1153. tion of 18 U.S.C. §§ gate. opening jury, before a found was tried argued putting Thompson about to a Max sentenced second pasture, and one thirty-year prison cattle in the south point term. physically scuffled, as the two *3 appeal on that The defendant contends Mowrer, defendant intervened. He hit by: the trial court erred picked up gun, pointed it at Mowrer refusing (1) instruct on “get him and told the law.” manslaughter involuntary in- as a lesser chil- Mowrer went back to where his offense; cluded holding dren now the cattle. Soon were (2) denying motion Terry Ducheneaux, thereafter, Mowrer’s judgment acquittal on the first brother-in-law, re- arrived and Mowrer degree charge; gate. turned to the He Max agent (3) permitting F.B.I. to tes- argued again Thompson when Mowrer tify made to statements as gate open attempted to and Max ; and fendant Thompson prevent him tried refusing (4) doing on to instruct so. defense. self argued, the the two defendant While in his a horse with the rifle mounted the afternoon October On being rode the cattle hand and toward father, Max and his the defendant The defend- held Mowrer’s children. of the defend- Thompson, left the home subsequent events ant testified about thirty parents, miles located about ant’s as follows: Dakota, Mobridge, South southwest grandmother. Q. jumped defendant The on the his ahead. You visit Go placed horse, happened in the car so caliber rifle ? a .22 and what got and seen an over there that “if we lope. up I at a A. I started road badger trying animal, to break or skunk edge of the it far as the made as destroy in, their re- could it.” On we bridge and was when [Mowrer] later, hours Max turri home a few caught up up me. He came out Thompson Mowrer’s observed some And when a ditch on the south side. pasture” and asked cattle in the “south cross-ways, pulled he he started “out of to drive the cattle the defendant across to a walk and started horse pasture had there.” of the south Use road. source of friction be- been a continual going said, to turn “You He are Thompson tween Max Glen they him around.” I told these cattle chasing the While gate. going through He are not pasture, Mowrer cattle out of Glen they no, they him and I told said were herding two of his children my said, “Over dead are not. And I along of the north other cattle a road body.” By that time he was about place pasture. these Mowrer intended me. And was four feet front of pasture. Mowrer cattle When coming just up. I raised this still So chasing his that the defendant was saw said, stopped. And he “Go so he pasture, he left those he of the cattle out you bitch, shoot, son ahead and herding and confronted the defend- didn’t move. He shoot.” And then he exchange resulted. A heated ant. up. And in his of raised saddle sort parent’s defendant then returned to then I shot him. reported incident to his home and trigger? Q. you Why pull did and his father The defendant father. just an ac- action. A. Reflex got they pasture. drove to the back him, didn’t mean to shoot I cident. leading gate into out of the ear at a' by this shot. pasture, Thompson the ri- was killed removed Max Grant, (8th Cir., 1973); INVOLUNTARY MANSLAUGHTER F.2d 27 Whitaker, INSTRUCTION United States v. 144 U.S. App.D.C. 344, F.2d on trial court instructed government It is conceded murder, degree second mur- all but the third condition was inmet manslaughter. voluntary der and argues that the case. trial court in- court refused to instruct the stating: properly held there no evidence voluntary manslaughter,1 justify a conviction of * * * anything i don’t think that manslaughter. It reasons from Shaffer by way bring stated would of evidence v. United 308 F.2d 654 included of involun- offense 1962),2 han- defendant’s tary picture in the dling gun necessarily involved all. assault on Mowrer with a view this as error. We weapon, act, that, a felonious there- *4 fore, the could not conclude that entitled to an in A defendant is the defendant killed in the com- struction on a lesser included offense if: mission of a in “lawful” act or com- the made; (2) (1) proper request the is mission “un of unlawful act not amount- the are identi elements of lesser offense ing felony.” to a great part of of cal the elements the reject offense; (3) reasoning.3 er is some evidence this there We Sec justify tion of which would the Title conviction 1153 18 the of of provides (4) offense; proof the on ele States Code the that the offense of differentiating dangerous weapon assault ment or the two with a elements is to sufficiently dispute be in defined crimes is in so accordance with the laws alleged may consistently find de of the state in the the which the crime greater Cheyenne fendant innocent of and committed.4 The River the offense; of the Indian lesser included Reservation lies within South (5) mutuality, e., Dakota. there i. Assault with a is weapon charge may by applicable the under be demanded either the Dakota South prosecution requires injure” or sta defense. United States v. tute5 intent to provides part: § 1. 18 in U.S.C. to fire he fendant pumped the the fact (a) Manslaughter killing chamber, is the unlawful a shell into the flour- being apparently gun of a is human without malice. of ished the loaded in the presence others, two kinds: of the and threatened Voluntary Upon quarrel a sudden or some all or that he would shoot unless — passion. they bidding quite ample of heat did his Involuntary the commission the of trier to conclude the that' unless —In felony, amounting enough, unlawful act not to a or threat alone was in- the defendant manner, bodily in the in commission an unlawful tended harm. circumspection, 654, or without due caution and Shaffer v. United 308 F.2d (5th produce might 1962), 939, denied, of a act which lawful death. Cir. cert. 373 U.S. 83 S.Ct. 10 L.Ed.2d 694 Court, discussing 2. The in assault Shaffer dangerous weapon government with a § under 18 If U.S.C. is in correct its inter- pretation Shaffer, stated: we refuse to follow only possible question The is whether that decision. support there is sufficient evidence to provides part: 4. 18 U.S.C. in finding requi- had defendant * * * section, in used of- bodily site “intent harm” to do * * *. fenses of assault with a dan- guard prisoners. or the other This is * * * gerous weapon, shall be de- by to be measured the secret motive of punished fined accordance with the purpose actor or undisclosed some laws of the in’ State which such offense merely frighten, to hurt. This is was committed. judged objectively to be from the visible person Every who, conduct the actor and one in the what 5 with intent to do bod . — position might reasonably ily justifiable the victim harm and without or excus present ability cause, any conclude. any able commits assault or as- voluntarily. intent, of B. Kuhl made bodily Milton Such harm.” “to do or course, physi by fact no evidence mental or the trier There found can be fact, circumstances, objective includ- cal coercion. In from the ing response actor.” statements were not made “visible conduct any interrogation Agent denial may of a Kuhl. in the face found be effectively it intent, but defendant was advised of such defendant of rights knowingly is entitled under not be. A defendant need standing testimony in- he did not declined to them. exercise have his —that See, Hughes Swenson, bodily injure harm— do 452 F.2d 866 tend 1971). jury. considered then, it for the There no evidence on which In this case to submit issue of self whether the defense to to determine injure jury. bodily harm or to to do intended effec instructions court’s Reversed and remanded for action jury, option from the tively took this opinion. consistent reject was error to it and it follows request for involun MATTHES, Judge the defendant’s tary Circuit Senior manslaughter instruction. Had (dissenting). instruction deference, due I am With unable weighed given, have could been agree in- should have including evidence, defend all of structed the lesser offense included *5 determining in statement, in ant’s manslaughter. my of I base give the instruction The failure to tent. upon any lack of evidence conclusion the effectively precluded con of to warrant issue. submission sidering statement the defendant’s recently, again enunciated Just we trigger pulling of was accidental. principle party entitled before a is therefore, We, but no alternative have upon to an instruction a lesser included “ judgment and remand reverse offense, proof ‘the or on the element new for a Court District matter differentiating the two crimes elements trial. sufficiently dispute in must be so that may may consistently be retried Because case find therefrom, appeal may we greater result an briefly fendant guilty innocent of ” remaining issues. discuss the included offense.’ Thompson, F.2d States v. JUDGMENT MOTION FOR 1974). ACQUITTAL OF reading My of record me leads de did err in court not justified trial in conclude that the finding judg nying motion for a wilfully appellant acted degree acquittal on the killing undisputed ment is charge. suffi evidence was any armed time the deceased was not at premedi question during argument cient submit the alterca- the heated jury. Conversely, to the parties. tation tion between the appellant a rifle with loaded armed F.B.I. AND TO AGENT STATEMENTS appellant deliberately at aimed which DEFENSE INSTRUCTION SELF ap- deceased, latter defied after the pellant only him. The contra- shoot We are convinced that state Agent dictory appellant’s Special testimony was the ments of imprisonment punishable by battery upon person an- in the state sault exceeding years weapon sharp penitentiary any or five not other or with by imprisonment county jail shoots, who, ex- or at- such- cause or without any ceeding year, tempts another, a fine not exceed- one or to shoot any ing firearm, both such five dollars or other hundred air kind of imprisonment. injure any person means, al- fine and with intent person though 22-18-11 intent to kill such S.D.C.L. without pulled self-serving statement

trigger “reflex the result of action. as just I didn’t mean an accident. shoot h'im.” Judge Heaney points out, the court vol- submitted second murder and manslaughter. although

untary Thus,

appellant could have been found voluntary re- which finding

quires only intent but malice, chose to decide that

appellant motivated intent and killing

malice in the deceased.

I am conscious that the district heavy penalty upon

imposed a rather

appellant, but that factor should not dic-

tate reversal for another trial. CORPORATION,

NATIONAL STEEL corporation, Plaintiff-Appellee (73-1687)

Appellant,

BUCKEYE STEAMSHIP COMPANY (KINSMAN MARINE TRANSIT COM

PANY), corporation, Defendant-Cross (73-1686) Complainant-Appellant, LINE, LTD., corporation,

BIBBY Defendant-Appellee. 73-1686,

Nos. 73-1687. Appeals,

United States Court of

Sixth Circuit.

Argued Dec. 1973.

Decided Feb.