James J. Clark v. United States , 259 F.2d 184 ( 1958 )

EDGERTON, Chief Judge.

This appeal is from a conviction of murder in the first degree.

Appellant pleaded not guilty and testified he “must have been insane.” As we said in Tatum v. United States, 88 U.S. App.D.C. 386, 390, 190 F.2d 612, 616, “the function of the trial court in regard to the issue of sanity is to determine whether that issue is brought into the case by evidence.” Here, the trial court determined that the issue was brought into the case by evidence. The court instructed the jury that “the defendant has raised the issue of insanity” and that “the first thing you will do is to consider whether or not at the time the crime was committed the defendant was of sound or unsound mind. * * * If you find that he was of unsound mind or have a reasonable doubt about it, of course, you must return a verdict of not guilty by reason of insanity.”

But appellant’s trial counsel, who was not his present counsel, had already said to the jury: “I think this is a case of manslaughter, not a ease of first degree murder * * *. We are not asking you to acquit this man, to free him. We know that he must pay a penalty * *. So that again, I say, we have not asked you, we do not ask you for an acquittal.”

Defense counsel’s attempt to take the defense of insanity out of the case was error. We cannot say it was not prejudicial. It must have tended, and may have tended effectively, to persuade the jury to disregard the court’s subsequent instruction that they should find the defendant not guilty by reason of insanity unless they found, beyond a reasonable doubt, that he was sane.¹

Reversed and remanded for a new trial.

1 . Our dissenting brother says that a concession of guilt is a permissible trial tactic, citing the Loeb-Deopold case as an outstanding example. See also Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 391-392, 190 F.2d 612, 617-618. In the Loeb-Leopold case, however, the defendants, after long consultation with their families, friends and advisors, entered knowing and deliberate pleas of guilty. Here the appellant not only pleaded not guilty, but reaffirmed his plea in his testimony.