*1 appeal, that notwith asserts da filed standing post-hearing commitment UNITED STATES of America Elizabeths, he without ben Saint is still may have efit treatment.16 Whatever Dewey BOBBITT, Appellant. course, proper terms
been No. 24275. commitment, treatment, to that Appeals, entitled United States Court of is clear became understand, District Columbia Circuit. treatment thereafter.17 We notwithstanding too, medical recom 19,1971. Argued April placed ain mendations be Sept. Decided 1971. privi hospital-based program with work Rehearing Petition for Denied leges community,18 appellant has in the 18, 1971. Nov. at Saint confinement remained think interests Elizabeths.19 We vacating justice would best served dismissing the District Court’s order corpus,
petition and remand for habeas ing af case to District Court litigat opportunity
ford presently whether
receiving “the least restric treatment legit with tive alternative consistent purposes a commitment.” imate summary dispo-
The cross-motions District Court’s are denied. The
sition dismissing petition for habeas order vacated, re-
corpus case proceedings consist- for further manded opinion. Appellant
ent with this treat- current to his tender by supplemental pe- program
ment appel- opportunity
tition,21 with an respond; Court District
lee to proceed, or without
will then may warrant,
hearing as conditions
disposition issue. ordered.
So par- Judge did McGOWAN
Circuit
ticipate or decision consideration in the this case. supra 16, supra, and at text been 19. See note has tliat he advises
16. also security 10. to a note maximum transferred security Howard in John ward minimum supra note 10. text 20. See placed Pavilion, in a has not but granted program extra- work release corpus “may petition 21. A habeas privileges. hospital * * * provided supplemented in the applicable procedure civil ac rules of supra 9. at note text See ¶ tions.” 28 U.S.C. pleadings, supplemental see Fed.R. supra. As note 15(d). Civ.P. *2 body hallway. Washington, Garber, in the He testified J. William Mr. signs alcohol, no there were C., appellant. D. signs struggle. The son Robinson, Asst. Michael Kenneth Mr. that, appellant deceased testified Thomas Messrs. Atty., with whom S.U. living together (“as deceased had been Terry Atty., A. Flannery, John S.U. A. wife”) *3 a common law man and num- Bennett, U. S. Asst. Robert S. and though years, ber of not at the time of appellee. brief, Attys., were on the incident. Judge, FAHY, Circuit Senior Before Prior to the issue defense case LEVENTHAL, Circuit and TAMM and whether, testified, if defendant arose Judges. subject impeachment would be to prior prosecutor rep- convictions. The Judge: LEVENTHAL, Circuit impeach- resented there that would be no judgment appeal a from an This is convictions, ment but added that sentencing terms appellant concurrent to if the defendant testified that the shoot- imprisonment twenty years to of three accident, awas mistake or then the degree and three to murder for second prosecutor appellant would that carrying pistol a years without ten had threatened the decedent awith shot- license. gun years twelve earlier. coun- Defense and conviction the murder We affirm object position. sel did not to this The reject appellant’s that the trial claim court, finding trial of evidence in admission court erred relevant on the issues of motive and regarding decedent on attack (Tr. 34), mistake ruled that could years shoot- occurring before the twelve used cross-examination. on appellant’s ing involved here.1 Since appellant’s testimony: This was He contention, insuf- there was second had lived with Helen Gill un- from 1954 on to sustain conviction ficient evidence til six about months her death. count, weapons a substantial raises night April 5, 1969, On the he went question, sentence concur- house, pick up request, her at her rent, judgment on we vacate some mail and a book. invit- union She weapons count. couple ed him and served him a beers, rum while she herself drank and Testimony I. gave beer. He her for an insur- $27.00 at trial revealed premium and ance started to leave. She evening April o’clock in the around 9 going, asked him where he was and he 5, 1969, shot Mrs. Helen Gill was replied shop. to the At barber Street, her home 25 N.W. death in S point, according appellant, Mrs. Gill Metropolitan Early of the Officer Milton gun turned around with a hand and Department that he and Police testified going anywhere.” He said “You ain’t Harvey on the arrived Officer John grabbed gun and in testified that he later, minutes and saw scene a few ensuing struggle and it went off she standing doorway of Mrs. pellant in the slumped picked up He floor. Appellant officers told the Gill’s home. pistol, desk, placed called and police an am- had called the that he police. an He admit- ambulance and the had “shot woman bulance because he * pistol ted his. * * * * * . [with over there hearing held Early On cross-exam- gun] on the desk.” Officer appellant, deter- pistol ination the court above loaded desk found a Appellant police 1ms since ob cross-examination. c-laimed that also him, contention view of withdrawn this fol statement tained oral Supreme ruling properly arrest, v. New lowing in Court’s Harris without his 643, 222, York, rights, 23 forming 91 S.Ct. U.S. his Miranda (1971). permitting L.Ed.2d erred court impeach use this statement disposition. prosecutor impeach from a vicious or criminal could that the mined through States, F.2d made Wakaksan a statement following (8th 1966). arrest,2 639, police Cir. him to the pointed has out that criminal could not be used but the statement relevance, establishing the be admissible because of as evidence Govern- intent; motive; g., e. ab- prosecutor to issues of then asked ment’s case. telling accident; identity; of mistake sence or whether remembered embracing plan sergeant or police shot common scheme that he had Helen gun so commission of two more crimes and that she did not have Gill possession Ap- related to each her when she was shot.
pellant
Drew
one tends to establish the other.
these statements. The
disavowed
v. United
instructed
to limit its
alleged prior
consideration of the
state-
*4
solely
purpose of
ments
for the
evaluat-
particu-
Appellant
that
contends
ing appellant’s credibility, and that
incident,
remoteness,
of
lar
because
must
consider the statement as es-
bearing
no
could have
on motive and
tablishing
truth
of
fact con-
problem
in this case.
is
mistake
n
tained
statement.
In rebuttal the
difficulty.
not without
The authorities
Sergeant
Government called
O’Brien to
admissibility
that
indicate
of other
testify concerning his conversation with
may depend
purpose
on
for
crimes
appellant
night
on the
of
murder.
whether,
which it is
ample,
for ex-
admitted—
major point
toAs
before us for
to show
com-
that
the accused
decision,
transcript
spare.
charged,
After
merely
mitted the act
or
appellant
alleged
disavowed
that,
his
it,
knowledge
state-
if he did
had
police
prosecu-
sergeant,
ment to the
required
intent
under the
conviction
tor asked him whether he had ever
statute.
states
McCormick
that “courts
shotgun.
threatened decedent with a
applying
are stricter in
their standards
Appellant admitted this. He
relevancy
later add-
purpose
when the ultimate
ed,
re-direct,
on
the incident oc-
prove identity,
of the state is to
or the
curred in 1956.
doing by
of the
the accused
criminal
they
charged than
are when
Shotgun
II. The
Incident
is offered on the ultimate issue of
knowledge,
intent or other state of
Admissibility
A.
as Evidence
mind.”
claims
twelve-year-old shotgun
Where,
here,
incident should
was
the defendant
shooting,
not have been admitted in evidence.
and
A the scene
is-
principle
long standing
pulled
trigger,
basic
who
in our
sue is
and
accident,
makes it
law
clear
evidence of one whether
was an
the court
prove disposi
is inadmissible
does
not have the kind
“iden-
rigorous
general.
tity”
tion to
imposes
commit
unusually
crime in
How
ever, proof
requirement
of an earlier crime
as a
admission
condition to
admissible if there is a
real
evidence of
criminal acts. This
connection
charged, beyond
with the
crime now
issue should not
considered
ground
arises,
spring
mere
contention
both crimes
same
as that which
Immediately
again
shooting appellant
years. Appellant
stated,
after
tlie
sixteen
Squad.
according
Sergeant,
was taken to the
when she
Homicide
to the
Ser-
geant
pulled
evening,
rights,
began
nag
O’Brien
advised
of his
him that
sign
pocket
pistol
shot
refused
a statement
his coat
attorney. According
point-blank
or call an
in the head.
Ser-
her
geant
O’Brien,
stated that
lie
rights,
gave
McCormick,
Law
understood his
then
C.
Handbook
police
history
Evidence,
an oral
of how the decedent
used,
nagged
abused and
him for
Appellate
possible
makes no reference
example,
counsel
where several
in a case
might
the lack of
aggressors
have committed
the Issues Presented
his Statement of
crime.
presenta-
But in
for Review.
his brief
subject
us
before
admissibility
the issue
tion of
giving
consideration
following
appears
evidence there
admitting
greater
discretion
(Br. 15-16):
materiality
on the basis
crimes
the evidence admit-
“Not
was
relationship
issue motive.
charge
ted,
but nowhere
the Court’s
obviously
parties is
material
between
did the Court inform the
what
determining
the defend
what motive
evidence was.
might have had to shoot decedent.
ant
Therefore,
left with
Here,
there
was other
guidelines
as to how to evaluate
there had
“bad
between
blood”
Note:
States v.
evidence.
deceased, his former
Bussey, supra, slip opinion pages
8.”
continuing
wife,
pe
over
common-law
268)
(139 U.S.App.D.C.
years,
did not abuse
riod of
[See
admitting
(1970).].
discretion
years previous
lated issue. The
sarily
Whether a criminal
evidence
threat
is a
*5
separate, though
shotgun.
too stale to be received
period
does
not
interre-
twelve
neces-
to cross-examine
a twelve
“It
[*]
error in
submitted
[*]
year
allowing
[*]
old incident
[*]
appeal
Government
-*
concerning
involving
[*]
there
alleged
make the
too remote even
on the issue
evidence
criminal conduct
showing
proffer
when offered on a
of
the
motive and was also error for
of
See,
identity.
g.,
Burns,
jury
People
con-
e.
v.
Court to
allowed the
have
308,
Cal.App.2d
P.2d
the
no
241 P.2d
evidence with
instruc-
sider
(1952) (Defendant
being at
admitted
tions.”
death;
thirteen-year-old
scene of
dent, showing
inci-
skimpy,
this
almost off-
view of
operandi,
similar modus
issue,
hand, presentation
have
of the
we
remote).
say
not too
the
We cannot
12-year-old
that
justice
to discern
in the interest of
tried
admission of the
incident on
strongest
that could
or claims
the
claim
the issue of motive
abuse
constitutes an
appellant.
been advanced
have
of the
that
discretion
must be
begin by consider-
shall
We
judge.
trial
claim,
ing
possible
based on United
McClain, 142
B. Claim Plain Error in
States
Omission
of
judge
trial
Limiting
(1971),
the
F.2d 241
that
Instruction
of
jury
failing
the
to instruct
erred
question
We turn to the
whether the
not
effect
the
could
consid-
trial court committed
error in fail-
ap-
threat as evidence of
er
instruction con- pellant’s
absence of mistake
motive or
cerning
past shotgun
the evidence of the
it first determined that he
unless
incident.
shooting.
involve
done
complaint
This would
failure to
the trial court’s
of
sought
Defense trial
counsel
this
instruct
may
struction. For all we know he
have
as
not
used
evidence that
be
rejoiced
judge
that the trial
did make
not
shooting.
pellant
of
the act
committed
subject
this
of
an instruc-
was not entitled
We think defendant
tion,
any
such
not
instruction would
an instruction
case.
such
presented
trial
view the
point requires
that it was
refine
is-
relevant to
mo-
us to
beyond
tive
emphasized
sig-
point
but would have
of admissi-
the initial
sue
bility
above,
evidence,
nificance of the
the mind of
discussed
jury.
of limitation on
use
perspective
offense, as-
As
for our
the mental element of the
the evidence.
grounds
suming
tending to
the various
that there is evidence
discussion we noté
may
physical
committed
be admitted
show defendant
on which other crimes
category
is a
cases
But
there
evidence. McCormick
act.
as
substantive
helpful analysis.
He
where
of a
provides a
states
the evidence
criminal
mind,
relevant
action
related to a state of
such
such
are
crimes
things:
closely
among
(1)
motive,
following,
as
is itself
re-
which
so
story
proof
complete
lated to
of the
To
commission
recognized
by proving
be
its immediate context of
it must
identity
happenings
place,
probative
near
such
crime is
in time
“same well
be characterized
as state mind.
gestae”).
(sometimes “res
transaction”
say
To
of-
larger
(2)
prove
“To
existence of
fense is
to the state of
material
continuing plan, scheme,
conspiracy,
committed,
mind with
the act was
which
present
crime on trial
independently
if
finds
showing
part. This will
relevant as
be
committed,
may
but it
taken
be
motive,
doing
crim-
hence the
ascertaining
into account
whether
act,
identity
actor,
inal
committed,
requires
act was
mental
intention,
of these is in
gymnastics
a dextrous kind.
If there
dispute.”
“Signature”
(3)
crimes— were direct
of mo-
testimonial evidence
nearly
other crimes so
identical in method
tive,
suppose
no one would
could
toas
earmark them as the handiwork of
appraising
taken
into account
(4) Propensity
the accused.
for illicit whether defendant committed the crime.
particular per-
sexual relations with
imposed
If there
law
is a limitation
(5)
show,
son concerned in
trial.
To
for the
mo-
case where the evidence of
acts,
similar
the act
on trial was
supplied
crim-
tive
(6)
not unintentional or accidental.
“To
act,
inal
stem from
fear that
must
establish motive. This in turn
fact
*6
will in
use the
identity
of
evidence
of the doer of
showing
general
of
as
crimi-
motive
charge,
the crime on
ness, malice,
or of deliberate-
disposition
regards
nal
that the
as
specific
or a
intent consti-
though
identity,
they
material
even
tuting
(7)
an element of the crime.”
“To
have not
been
been so instructed or have
malice,
show, by
inference,
immediate
contrary.
instructed to the
specific
deliberation,
ill-will or the
in-
now
We do not
consider
the case
required
particular
tent
for a
crime.”
identity
where
is in
sense
issue
* * *
(8)
prove identity
“To
[A]
was at
is denied
defendant
proving identity
need for
is not ordinar-
of
scene
the crime at the time
ily of
admission,
itself a ticket of
but
volved.
is not denied the
When
*
(cid:127)x-
*
usually
the evidence will
fol-
showing
likely
sub-
of motive is
to be
low,
channel,
as an intermediate
some
stantially
directly
the is-
material
one or more of
theories here
defendant
sue of whether
committed
example (2),
(3),
(6).4
listed” —for
or
criminal act. The
of relevance
standard
prior
notes,
A
may vary,
incident which tends to
McCormick
as
plan,
signature
common
probabilities.
scheme or
crime, by
very
present
its
case,
nature tends to show In the
the fact of defend-
directly
prior
the defendant did in
ant’s
fact
threat
tended
charged
mind,
commit the act
in the indict-
show motive and state
—tended
prior
ment. When
evidence is
least
one
rele-
to show that at
on
occasion
hostility
vant to defendant’s state of mind it is
deceased was so intense
shooting.
only
relevant
In
immediate inference
lead
to resort to
as to
McCormick,
prior crimes,
4. C.
lie
Handbook
the Law of
deuce of
identifies
Evidence,
(10)
(1954).
(9)
by conduct;
328-30
He
as
also lists
admissions
admissibility
impeachment.
two other
cases
of evi-
principle
applied'
was also
material
evidence
this
our view
defendant,
panel
admit-
In
McClain.
McClain
of this
case
court,
judge dissenting,
scuffle,
reached
tedly
in a
who
one
reversed
involved
pellant’s
ground
pistol,
and not deceased.
conviction on the
plain
error
the trial court’s failure to
light of these com-
In the
instruct
to consider evidence of
question as to
on the
we focus
ments
prior
only
assault
on the issue of de-
any,
instruction,
if
what
malice,
only
fendant’s
and then
after
explanation
an
as
had found that defendant committed the
materiality
evidence.
charged.
the failure to
are instances where
There
jury’s
crimes is
limit
use of other
said in
McClain
may even be
error.
error and
controlling.
principle of Jones was
Now
the other
obvious occurs where
most
special
since Jones related to the
ease of
introduced,
not as substantive
impeachment
veracity
it was obvious-
impeachment.
solely
evidence, but
ly
controlling by
weight.
its own
Jones v. United
fairly
What McClain must
be taken to
In that situa-
F.2d 296
principle
have intended is that
has no
evidence
definition
tion the
applicable
Jones was
because of the situ-
bearing
substantive
direct
McClain,
ation in
which was as follows:
credibility
trial,
solely
at
but
strenuously objected
Defense counsel
witness
Therefore
stand.
the admission of the
incident and
duty
to see that
trial court has
prosecutor, during colloquy
boundary
be-
does not cross
bench, expressly
stated that he did
credibility
in mak-
and substance
tween
want
use the incident as
evidence
from the
act.
inferences
act,
defendant’s homicidal
but
sponte,
He
act sua
wheth-
must not
act,
that,
if he committed the
made,
request
er or not
but should
he did so with
The trial court
malice.
appropriate
immedi-
prejudicial.
excluded the
impeachment
ately
after
before or
But
testi-
when defense counsel elicited
submitted,
evidence is
to confine its ef-
mony
as to the
assaults
defend-
on to oth-
fect before the evidence moves
decedent, during questioning
ant on
er matters.
daughter,
defendant’s
the court
itself
daughter
stepped
questioned
in and
may assume
We
for discussion
explaining
about
incident.
principle
applies
the evi-
also
*7
counsel,
action
its
to
the court
stated
presented
to
dence as
other crimes
is
previously
it had
excluded
evi-
by
rebuttal,
only
way
g.,
as
contra-
e.
dence,
grounds
it
even on the
for which
dicting
testimony
alibi
defendant’s
Government,
was offered
but felt
as to his location at
the time of the
prof-
bound to honor the Government’s
fact
crime.
was the
situation be-
opened
fer once defense counsel had
fore
v. Bus-
United States
area.
sey,
(1970), although
may
it
be noted
prejudicial
impact
Since the
of the
Bussey
say
did not
the failure
outweighed
probative
its
tend-
limiting
to
a
instruction was
ency,
ruled,
as the court had
the subse-
only
error but
it
showed the
quent
admissibility
occasion
when
provide a
failed to
curative
the error
opened
required,
defendant
door
admitting
testimony
made
appro-
prejudice,
an
an
avoidance of this
prejudicial
crime when
less
structure
focusing
priate
limiting instruction
devised, by permitting
could have been
purpose
limited
Government’s
presence
of defendant’s
at a
making
proffer,
place
—not
different
from that
set
forth in
act,
he did
did the
if
defendant
but
identifying
pres-
his alibi without
such
part
progress.
ence as
it
malice.
then
so was with
prior
prior
where as here the
events
evidence that defendant
However
alleged
issue
committed the
introduced on
substantive
acts.5 Such
act is
charge
(e. g., motive)
appropriate
and there is no contest
is
like the
cases
opportunity,
presence
narcotics cases
defendant
is
to defendant’s
where
automatically pre
denying
intent,
jury is
to
be
both the act and the
drawing
past pattern
infer
further
where the
criminal acts
vented from
intent,
it
commit
ence that was defendant who
material
but the exist-
ap
knowledge
ted the
There is therefore no
is not in
crime.
ence of
and of itself
plicability for
the rule of Jones and material as evidence of the commission
special
requiring a
instruction
differ-
McClain
act.
cases involve
Those
of lack of relevance
whether defend
ent considerations
from the case
charged.
limiting
ant
hand. The
committed the
same
required
would
be
the evi-
prior
3. Even where
dence of
narcotics offense is
significance,
crime has substantive
it
admissible not
issue of
may
particular
be relevant
to a
knowledge but also on
of iden-
the issue
that must
delimited in order
avoid
be
tity,
Smith,
as in United States v.
prejudice.
Obviously the
(2d
1965).
F.2d
Cir.
permits
not be
an instruction that
An instruction would also
neces
general predisposition
to infer a
sary
prior
in cases where a
sexual attack
pertinent
commit
And
crime.
where the
complainant
is used to show
de
susceptible
substantive issue is
of delim-
fendant’s desire for
sexual
relations
itation,
appropri-
an instruction
particular person.
with this
The use of
improper
ate to avoid
transfer
to a de-
such evidence for this
stands as
termination of all the
of of-
elements
exception
general
prohib
rule
charged.
person
fense
That a
was once
iting
use of
as evidence of
crimes
selling
convicted of
narcotics
some propensity. But defendant
entitled to
physical
that he knew the
charac-
instruction that while the
teristics of narcotics and could distin-
permitted
to infer from
in
guish
substances,
them from other
but
cidents that defendant had a desire for
of, say,
peculiar
in the absence
modus
complainant,
sexual relations with the
operandi,
it would not
itself have ma-
permitted
is not
to infer from this fact
teriality
showing
that he sold narcot-
go
that he had a desire or intent
fur
ics on a later
Thus in Med-
occasion.
ther and to
overcome
all resist
(9th
rano
v. United
F.2d 23
ance in order to achieve those relations.
1960),
Cir.
the defendant was convicted
Huff,
States v.
143 U.S.
violating
through
21 U.S.C.
App.D.C.
that defense counsel was factual possession view, re point with in- from a tactical duration manner the statute. quired under structions that omitted reference for conviction emphasis these However, resolve on the evidence of need not and hence we sup- questions in sentences crime. He well have this case. concurrently, imposed skimpy posed reference this case were arising years previous the same se out of twelve convictions large these quence view would not of itself loom of events. af jury.6 facts, fact that we As matters stood mind conviction, might argument think we there counsel but the murder firmed gun required pulling own out of bis If after initiate *9 purposes solely clarifying presumably pocket was admitted instruction its issu- impeachment, subject of the court’s ance because defendant’s veto. constitutionality concerning the doubts testimony Sergeant O’Brien, confession. The the appellant shooting confessed Mrs. Gill 694 defense, halt public is furthered testified in his
the interest in judicial ing re of scarce substance as set forth in the devotion the court’s appeal. opinion. testifying In the interest Prior sources to his justice, question whether, appellant va if of the administration we arose said weapons shooting accident, count. cate conviction was mistake or U.S.App. prosecution Hooper, United States v. 139 would b.e allowed to show 432 604 he had D.C. F.2d threatened the deceased shotgun years After earlier. So ordered. colloquy an extended the trial court prosecution ruled per- FAHY, Judge would (dissent- Senior Circuit inquire shotgun mitted to about the ing) inci- : dent because it “reflects motive.” Sub- The court failure of trial sequently, cross-examination, ap- on his limiting instruction to the pellant admitted incident. The year use it could make of the 12 old court, nevertheless, failed to instruct shotgun appellant in which jury that this evidence could be consid- threatened the deceased constituted jury only bearing ered my opinion reversible error. motive.1 con- case-in-chief The Government’s opinion recognizes The court three witness- sisted long standing principle that evidence of pages transcript. covering es, one gen- crime is inadmissible to testified The son of the deceased disposition eral of an accused commit “com- his mother and year crime. Yet the 12 old incident was and wife for number mon law man before without a in- years.” Rayford, performed who Dr. struction, principle. violation of this deceased, autopsy body on the admissible, shotgun The incident was which caused testified the bullet appellant’s says, as the court her her death entered forehead. Officer previous, continuing, possibly hostil- Early testified that he and another offi- deceased, ity in turn toward the which responded to a call the shoot- cer about bore on the whether standing and observed committed homicide.2 See a criminal doorway they ar- when house 1940); (3d Wigmore, ed. Evidence § The then said: rived. officer assumes, 2 id. 385-397. §§ police, asked him did call he [W]e said, and he “Yes.” stated He pellant would wanted was “that shot woman we asked shotgun could not consider where, said, there,” and and he “Over appellant’s threat motive laying floor, saw we her on the or absence of mistake unless it first de- said, gun,” we “Where and he shooting.” termined had done the said, “On the desk.” assumption I think is a mistaken The above was Government’s case-in- True, one. such an instruction would be chief, aside from a certificate admitted proper, necessary, and indeed if evi- appel- evidence which indicated that dence of the earlier incident had been carry lant did not have a license to prove only admitted to intent. pistol. McClain, States disputed 1. It is not my outweighed view its inflamma- solely cident admitted tory show mo- jury. Recognizing, effect aon how- tive. ever, extremely giv- broad discretion judges area, en trial in this I am con- I would be reluctant strained to conclude that its admission year to admit in evidence a 12 old in- in evidence reversible error. cident as relevant Wigmore, motive. (3d Evidence ed. probative Its 1940). attenuated value as when so charged remote from the act
695 part (1971); appellant’s to v. tion on commit crime. 241 United States 440 F.2d Moreover, 337, only appropriate Gay, U.S.App.D.C. lim- F.2d with an 410 133 300, iting supra, hope (1969); Wigmore, con- 2 instruction can courts to 1036 §§ evidence, by jury 302, fine of such was consideration 363. The prejudicial appellant’s the within limits to motive on evidence admitted and, charged, the law part act allows. to commit the therefore, as evidence that did so. recent in decision McClain is ex- by proper use the limitation on its plicit limiting instruction is nec- jury this was should in situation essary whenever evidence crimi- of other evi- insofar as it be considered nal conduct of accused is introduced hostility 3 previously existing denced a at trial: part de- the toward the in- is evidence prosecution Whenever ceased, in could be consid- which turn only admissible is troduced which question hos- ered on the whether such en- purpose, the defendant a limited tility the act still existed at time inform which to titled instructions charged; so, and if instruction may be proper jury use continue, jury could consider of that evidence. made hostility of such at existence .supra, McClain, 142 U. v. United States charged determining time act S.App.D.C. 217, at See 440 F.2d 245. at appellant in the critical issue whether U.S.App. Bussey, 139 v. States charged fact committed the act to him. 1330, 268, 272-273, 1334- 432 F.2d D.C. supra, 117; Wigmore, § id. §§ Gay, su- (1970); v. United States jury addition, 340-341, 410 pra, U.S.App.D.C. at should have been in no instructed ;5 Wigmore, supra, F.2d 1039-1040 at event could it use as indica- the evidence quite con- rules now 13. The court generally culpable tive that was attempt trarily Its decisions. to these though person, principle point distinguish the McClain decision jury that the should have at least been entirely the basis overlooks facts instructed, McClain, as the lim- decision; in McClain court purpose ited for which the evidence was upon the expressly reliance disclaimed admitted. majority. Mc- mentioned facts large clearly that an jury effect was left at with Clain is Since the shotgun limiting incident, propriate should be en- instruction the evidence of the given has abling appellant was evidence in all cases where the it to consider being purpose; type, is clear than limit- a criminal rather a limited shotgun above, was ed in its use as set forth purpose, not- Ab- a limited serious error. infected with admissible became admissible, withstanding dan- proper it was sent ger, instruction there recognized recognize, itself, majority general charged disposi- him.6 would infer committed the respect” Moreover, “any regarding must instruction evidence tlie prejudicial except purpose permitted given at the moment as to one v. is admitted. United States the trial court. [Footnote omitted] McClain, Bussey, supra; United States Gay 5. The court said: 268, 272-273, 139 1330, admissible, Having found the evidence 1334-1335 was, course, the trial court under duty the lim- instruct Bussey 4. The court said: purpose ited for which the evidence Moreover, was was be considered. admitted, the time this was jurors on the limited 6. The to caution being re for which was cident admissible to show mo- ceived, reality Though and it blinks think tive. affords * * * capable broader use of evidence than when involved, gymnastic” “mental of dis- of intent *11 696 dispose carrying character of the error of the conviction of reversible dangerous weapon on not obviated absence re without license
quest by
Hooper,
for
counsel
instruction.
basis
United States v.
Nothing appears
U.S.App.D.C. 171,
to indicate
counsel 139
whom Mr. Justice Mr. Justice was, course, only Brennan, fered in rebuttal joined, and Mr. Justice Portas impeachment Spencer and can- Texas, 554, 572- U.S. serve (1967), substantive 87 S.Ct. L.Ed.2d 606 charged. p. supra, n. not inconsistent Court’s opinion. opinion. the court’s appellant’s If the court were to reduce manslaughter conviction to in the inter