UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, and Robb, Circuit Judge. Bazelon, Chief Judge, dissenting.
The appellant Marshall was indicted for murder in the first degree in that he shot and killed one Michael Feathers. The case was tried to a jury. At the close of the government's proof the district judge granted the defendant's motion for judgment of acquittal as to first degree murder. The jury found Marshall guilty of murder in the second degree. He appeals, complaining of several alleged errors. We find no merit in any of his contentions.
The proof for the government was that Marshall and the deceased Michael Feathers did not know each other. Some two weeks before the shooting, however, an altercation occurred between Marshall and Michael's brother William Feathers. The shooting occurred late one night when Marshall encountered the brothers on the sidewalk outside a bar. Standing some six feet from the two men Marshall called to them "come here, boy", and drew a sawed-off shotgun from under his shirt. William Feathers turned away but Michael did not, and Marshall then shot Michael in the head at close range, blowing off half of his skull. Marshall ran away, discarding the shotgun, but was soon arrested in the immediate vicinity, and the gun was recovered.
Marshall did not testify nor did he contest the government's version of the circumstances of the homicide, but he relied on a defense of insanity. As witnesses, he called his sister and a psychologist, Dr. Blum, a member of the staff at St. Elizabeths Hospital. The sister described Marshall as a drifter who, as a child, had been shifted from one home to another and who recently had been moody and upset, and had taken to drink and the occasional use of drugs. Dr. Blum testified that Marshall was a "borderline mental defective", having an intelligence quotient of 70, and that he suffered from a mental illness, a personality disorder known as "schizoid personality". According to Dr. Blum there was a relationship between this illness and the shooting, because a manifestation of the illness was a desire to appear as a big man, tough, uncaring and remorseless, although "he really feels totally inadequate and inferior".
In rebuttal the government called two psychiatrists, Drs. Kunev and Platkin, members of the staff at St. Elizabeths who also had examined Marshall. They testified that although in their opinion he was mentally ill, suffering from a schizoid personality with inadequate features, there was no relationship between his illness and the offense he had committed.
The appellant contends that the district court should have granted his motion for judgment of acquittal by reason of insanity. We think, however, that the question of responsibility was properly one for the jury; indeed the issue was a classic jury question. United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971); Adams v. United States, 134 U.S.App.D.C. 137, 413 F.2d 411 (1969); Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559, cert. denied, 393 U.S. 858, 89 S. Ct. 109, 21 L. Ed. 2d 126 (1968).
We deferred our disposition of this case pending our decision in United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, No. 22,714 (June 23, 1972) (en banc). We now conclude that the Brawner case does not help the appellant, for we specifically held in that decision that it was not retroactive. 969, at 1005 of 471 F.2d n. 79. We note further that the issue of Marshall's responsibility was fully and fairly presented to the jury, in accordance with previous decisions of this court, *fn1 and we see no reason to believe that the jury would have reached a different result if instructed according to the formula prescribed in Brawner's case.
After the jury had been sworn the appellant moved to dismiss the indictment upon the ground that no evidence before the grand jury supported a charge of murder in the first degree. The motion was based upon the transcript of the testimony before the grand jury, which had been made available to appellant's counsel before trial. From the predicate that the indictment for first degree murder was invalid the appellant argues that he was prejudiced, because in choosing the jury several prospective jurors were excused for cause when they said that their opposition to capital punishment was such that they would be unable to render a fair and impartial verdict as to the appellant's guilt or innocence of first degree murder. The appellant reasons that he was prejudiced by the exclusion of these persons from the jury that passed on his guilt or innocence of second degree murder.
The appellant's attack on the indictment and on the composition of the petit jury suffers from at least two fatal defects. First, except in extraordinary circumstances, not present here, an indictment is not open to challenge on the ground that it was not supported by adequate evidence. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956); Lawn v. United States, 355 U.S. 339, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958). Second, the appellant was not prejudiced by the exclusion of the prospective jurors. There is no indication that the jurors who were seated and who convicted the defendant of second degree murder were not fair and impartial. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968); Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); Bailey v. United States, 132 U.S.App.D.C. 82, 405 F.2d 1352 (1968). The appellant was entitled to a fair and impartial jury, and this he had.
The indictment alleged that Marshall "did shoot Michael H. Feathers with a pistol" thereby causing injuries from which Feathers died. The proof of course was that the fatal weapon was a sawed-off shotgun. Nothing was said about the discrepancy when the indictment was read to the prospective jurors during the voir dire. Immediately after the jury was sworn, however, the prosecutor brought the matter to the attention of the court, suggesting that the variance was one of form, not of substance, and the court allowed the trial to proceed on this theory. The appellant now contends that the variance was fatal. We do not agree, although we regret such carelessness on the part of the government.
The offense charged against the appellant was that he killed Feathers by shooting him; a precise description of the firearm used was not essential to the charge. Furthermore, there is no suggestion that the appellant was in any way prejudiced by the mistake in the indictment. From the statements of witnesses and the grand jury testimony made available to him before trial, he knew what the proof would be. See Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, cert. denied, 385 U.S. 877, 87 S. Ct. 157, 17 L. Ed. 2d 104 (1966); United States v. Thompson, 356 F.2d 216, 225-227 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966).
Finally, the appellant complains of the district court's instructions on malice and manslaughter. Having examined the instructions we find ...