The opinion of the court was delivered by: HOLTZOFF
The defendant Frank B. Wilson was convicted of murder in the first degree and moves for a new trial on the ground that the verdict was contrary to the weight of the evidence.
The indictment charged that on or about February 20, 1959, Frank B. Wilson purposely and with deliberate and premeditated malice murdered Florence E. Smith by means of shooting her with a pistol. It might be said that the considerable interval that elapsed between the date of the indictment and the date of the trial was caused by the fact that two mental examinations were had on the motion of the defendant, which consumed several months. The specific charge against the defendant was that on the morning of February 20, 1959, at about seven o'clock, he entered the apartment of the deceased, with whom he had carried on a clandestine love affair, and fatally shot her. In its instructions, the Court indicated to the jury that if the defendant was convicted, the jury might bring in a verdict of guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter. As stated, the jury returned a verdict of guilty of murder in the first degree.
At the close of the Government's case, as well as at the close of the entire case, the Court denied a motion made by the defendant to take the case away from the jury insofar as the charge of murder in the first degree was concerned. It was the view of the Court, and it is still its view, that there was sufficient evidence to justify the submission of all of the issues to the jury. There is, however, a very definite distinction between a motion for a judgment of acquittal and a motion to set aside the verdict on the ground that it is contrary to the weight of the evidence. A motion for a judgment of acquittal raises the question of law whether there is any substantial evidence whatsoever justifying a conviction. A motion to set aside the verdict on the ground that it is contrary to the weight of the evidence introduces an entirely different issue, namely, whether on weighing all of the evidence on both sides, it heavily preponderates against the verdict.
The effect of the two motions is also entirely different. If a motion for a judgment of acquittal is granted, the result is a final disposition of the case and an acquittal of the defendant. If a motion for a new trial is granted, the result is merely that the case will be tried before another jury and the parties will have a second opportunity to present the issues.
To set aside a verdict on the ground that it is contrary to the weight of the evidence is a very serious matter. Verdicts of juries should not be treated lightly. A great deal of respect must be accorded and much weight attached to the verdict of a jury. I personally have a mounting sense of admiration for the type of justice that is generally meted out by the average jury. Nevertheless, all human beings are fallible. If a verdict is contrary to the weight of the evidence, it is the duty of the judge to set it aside. It is a duty that cannot be avoided, although the responsibility involved is great.
As just stated, the effect of granting a motion for a new trial is not to make a final disposition of the case, but merely to secure the decision of another jury. If a second jury reaches the same conclusion as the first it does not necessarily follow that the trial judge would set aside the second verdict. Only a short time ago, in the case of Frank v. Atlantic Greyhound Corp., D.C., 177 F.Supp. 922, I had set aside a verdict in a civil case on the ground that the damages awarded to the plaintiff were excessive. At the second trial approximately the same result was reached. I declined to set aside the second verdict as it seemed to me that two juries having practically agreed, substantial justice had been done.
The principles governing motions for a new trial are well established. I had occasion to review the authorities on the subject in United States v. Robinson, D.C., 71 F.Supp. 9, 10-11, and in the course of the discussion made the following remarks, after referring to motions for a directed verdict and motions for judgment notwithstanding the verdict:
'On the other hand, on a motion for a new trial on the ground the verdict is against the weight of evidence, the power of the Court is much broader. On such an application, the Court may weigh the evidence and consider the credibility of witnesses. If the Court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. Naturally this authority should be exercised sparingly and with caution. It should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
'There is no incongruity or inconsistency in requiring the Court to submit the issues to the jury if there is substantial evidence to support a verdict of guilty, and at the same time in empowering it to set the verdict aside if it is deemed contrary to the weight of the evidence. In directing a judgment of acquittal, the Court makes a final disposition of the case. On the other hand, in setting the verdict aside the Court merely grants a new trial and submits the issues for determination by another jury. It is appropriate that in the latter instance, the Court should have wide discretion in the interest of justice.'
A graphic summary of these principles was made by Judge Parker of the Fourth Circuit in the leading case of Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 354, where he said:
'To the federal trial judge, the law gives ample power to see that justice is done in causes pending before him; and the responsibility attendant upon such power is his in full measure. While according due respect to the findings of the jury, he should not hesitate to set aside their verdict and grant a new trial in any case where the ends of justice so require.'
The Court is convinced that in this case a verdict of guilty of murder in the second degree would have been in accord with the weight of evidence and would have been amply justified. The distinction between murder in the first degree and murder in the second degree is that the former, in addition to intent to kill, requires premeditation and deliberation, while murder in the second degree does not require any premeditation or deliberation and not even an intent to kill, if the killing is accompanied with malice. Under the law as it has been interpreted in the District of Columbia, in order that there may be sufficient premeditation and deliberation, some appreciable interval, no matter how brief, must elapse after the intent to kill is formed and before the killing is accomplished, and during that interval there must have been some reflection which would amount to premeditation and deliberation.
The principle of law was formulated by the Court of Appeals in Bostic v. United States, 68 App.D.C. 167, 170, 94 F.2d ...