dissenting:
Owing to the importance of this case, I deem it my duty briefly to state the grounds of my dissent.
The defendant wTas indicted and tried for murder in the *340first degree, the indictment alleging that she “feloniously, wilfully, purposely, and of her deliberate. and premeditated malice, did cast and throw at, against, and upon the said” deceased, a lighted lamp. She was convicted of murder in the second degree and sentenced to the penitentiary for twenty years.
Deceased’s brother, James Hodges, and the defendant, were living together. They are evidently colored people, and a careful study of the record shows that the defendant is not of a high order of intelligence. This fact should be kept in mind in characterizing the act here complained of.
On the evening of Thanksgiving Day, 1916, Hodges was having a birthday celebration, and several friends or acquaintances were present. He was more^or less intoxicated, and, although a witness for the government, remembered very little of the occurrences of the evening. The government,' however, put upon the stand one Sylvester Shields, who, notwithstanding that he also' had been drinking “right smart,” had observed and remembered those occurrences. In the majority opinion this witness is characterized as “a friend of the defendant’s.” Why I do not know, for there is no testirnony to that effect. He was a witness for the government, and there is nothing in his testimony to indicate that he was prejudiced either for or against the defendant. In other words, he apparently was trying to tell the truth. He testified that Hodges and the defendant “got to fussing about the whisky, and he (Hodges) jumped up and hit her, and while they were fighting she pushed him and he fell downstairs. * * * He missed his foot and slipped and fell down the steps.” The celebration was being held upstairs, and "the rooms on that floor were lighted by oil lamps. After the trouble between Hodges and the defendant all the others present, save Shields, left. Soon after Hodges had been pushed or had fallen downstairs, his two sisters (deceased, whose name was Mary Bragdon, and Pansy Tahbs) appeared at the foot of the stairs, and Mary, notwithstanding the repeated injunctions of the defendant that she' “go ’way, Mudgy,” persisted in ascending, and, upon entering *341tlie room, the defendant’s home, “grabbed a chair and hit Margaret (defendant) before she could get back many steps.” Mary said she wanted to know “what Margaret was doing fighting her brother. * * * What are you doing pushing my brother down the stairs?” To this defendant replied that she did no more than defend herself. Defendant “kept on telling her, 'Go ’way, Mudge,’ and when she (M.udge) hit her (defendant) with the chair the second time she took the lamp and hit her with it.” Shields further testified that “before Margaret (defendant) threw the lamp she said, 'Go ’way, Mudgy.’ ” According to the testimony of this witness, “Mary was about 6 feet from Margaret when Margaret threw the lamp; she was just far enough away in case she had hit at her again she could not have reached her with the chair she had.” On cross-examination the witness testified that when Mary came in the door the defendant “backed off back and kept telling her to 'go ’way, Mudgy.’ ” The table on which the lamp was setting was against the wall. The only other eyewitness was the defendant, whose testimony did not differ materially from that of the government’s witness.
According to the uncontradicted evidence, therefore, the defendant ivas in her own home when the deceased, for the deliberate and obvious purpose of assaulting the defendant for a real or fancied grievance growing out of the quarrel between deceased’s brother and the defendant, entered defendant’s home against the repeated admonitions of the defendant, and, armed with a chair, although defendant was unarmed and “backing off hack,” was putting that intent into execution. It is undisputed that the defendant retreated as far as she could, and that the nearest thing at hand was the lamp. While defendant was testifying, the court asked her whether there was not another chair in the room, and she replied that “there were two straight chairs there.” The court then asked: “Why did you not, take one of these to defend yourself with?” "Witness answered: “There wasn’t any way I could move.” Whereupon the court said: “You mean to tell me you could not have picked up one of those chairs?” and witness answered, *342“If I had -,” when the court asked, “Where were those chairs ?” Defendant replied: “The chairs were too far from me.” The court then inquired, “Where were they, were they not right beside that table,” and defendant replied, “No, because there were two windows.”
Defendant’s counsel at the proper time, that, is, at the close of this cross-examination of the defendant by the court, noted an exception to the court’s “question as to why she (defendant) did not take the chair instead of the lamp to defend herself.” The obvious intent of this exception was to challenge the attitude of the court in conducting the examination, and the exception is so treated in the briefs of counsel for defendant and the government. The words of the court in Adler v. United States, 104 C. C. A. 608, 182 Fed. 472, are here pertinent: “A cross-examination that would be unobjectionable when conducted by the prosecuting attorney might unduly prejudice the defendant when it is conducted by the trial judge. Besides, the defendant’s counsel is placed at a disadvantage, as they might hesitate to make objections and reserve exceptions to the judge’s examination, because, if they make objections, unlike the effect of their objections to questions by opposing 'Counsel, it will appear to the jury that there is a direct conflict between them and the court.”
At the moment defendant threw the lamp, the deceased, having twice hit her with a chair, stood within about 6 feet of her, with the chair in hand ready for a third assault upon the defendant, whose back was to the wall, yet under the view of. the court, conveyed to the jury through his cross-examination of the defendant, the defendant, even though she believed herself to be in imminent danger, — as she undoubtedly was,— might and should have turned aside and seized the chair, in* stead of taking advantage of the nearest means of defense. In the circumstances of this case, I think the court committed material error in this cross-examination. It tended to characterize defendant’s testimony, on the vital point in the case, as untrue, and to prejudice her in the minds of the jury. While the court apparently recognized the malicious intent ard .ana*343acing attitude of tbe deceased at the moment the lamp was thrown, by asking the defendant why she did not take a chair to "defend” herself, the effect of the forceful repetition of the question was to lead the jury to believe that, in the opinion of the court, the defendant’s answer was so unreasonable as obviously to be untrue. If that was not conducting the cross-examination in such a “critical manner as to indicate” disbelief in the witness, I am at a loss to characterize the occurrence.
Defendant was arrested within a few minutes after the occurrence, and the four police officers who accompanied her to the police station testified as to the statements made by her at the time. No two agree as to what she said, and one testified that she “seemed io be very much excitedThe substance of their testimony was that the defendant expressed satisfaction at what she had done, and one of these policemen testified that defendant said “she had done what she intended to do for a year if she had an opportunity.” This was the sole evidence upon which the government relied to show malice, and the testimony of witnesses put upon the stand for the prosecution wTas to the effect that the relations between defendant and deceased always had been cordial, — that they had had no trouble whatever. Notwithstanding this, the court submitted to the jury the question of first and second degree murder." While no exception was taken, in a criminal case of this magnitude the court should see that the rights of the defendant are protected. Lomax v. United States, 37 App. D. C. 414; Miller v. United States, 38 App. D. C. 361, 40 L.R.A.(N.S.) 973; Heim v. United States, 47 App. D. C. 485, L.R.A.1918E, 87; Wiborg v. United States, 163 U. S. 632, 41 L. ed. 289, 16 Sup. Ct. Rep. 1127, 1197; Crawford v. United States, 212 U. S. 183, 53 L. ed. 465, 29 Sup. Ct. Rep. 260, 15 Ann. Cas. 392. In view of the uncontradicted evidence as to the situation of the parties when the lamp was thrown, it is my opinion that the court committed error in not ruling that there was no evidence upon which to base a verdict of murder in either the first or second degree. The defendant was in her own home. She had been, and was being, assaulted. She did more than *344the law required of ber, — she retreated and called upon the deceased to desist, and not until she had repeatedly admonished the deceased in vain did she throw the lamp. How, then, may it be said in reason that any of tbe elements of murder were present ? My associates apparently are of tbe view that a person is not justified in believing himself to be in danger because another, who already bas struck him twice with a chair, is 6 feet from him, although at the moment holding the chair in a menacing attitude. I differ with them on this point. The real test of danger in a case like this is how the question appeared to the defendant in the excitement of the critical moment. To say that there is any evidence even tending to show that defendant was not justified in believing berself to be in danger of further assault is, in my view, to displace facts with theory. The most that can he said is that, owing to the confusion, excitement, and hot blood engendered by tbe assault admittedly made upon her in her own home, the defendant may have gone too far in her defense and may have been guilty of manslaughter.