dissenting.
A shocking crime puts law to its severest test. Law triumphs over natural impulses aroused by such a crime only if guilt be ascertained by due regard for those indispensable safeguards which our civilization has evolved for the ascertainment of guilt. It is not enough that a trial goes through the forms of law. Especially where life is at stake it is requisite that the trial judge should so guide the jury that the jurors may be equipped to determine whether death should be the penalty for conduct. Of course society must protect itself. But surely it is not self-protection for society to take life without the most careful observance of its own safeguards against the misuse of capital punishment.
This case has been much beclouded by laymen’s ventures into psychiatry. We are not now called upon to decide whether the antiquated tests set down more than a hundred years ago regarding mental responsibility for crime1 are still controlling or whether courts should choose from among the conflicting proposals of scientific special*478ists.2 This is not the occasion to decide whether the only-alternative is between law which reflects the most advanced scientific tests and law remaining a leaden-footed laggard. The case turns on a much simpler and wholly conventional issue. For the real question, as I see it, is whether in view of the act of Congress defining murder in the first degree for prosecutions in the District and in light of the particular circumstances of this case, the trial court properly sent the case to the jury. That is a very different question from whether the court’s charge was unimpeachable as an abstract statement of law. For Fisher is not the name of a theoretical problem. We are not hear dealing with an abstract man who killed an abstract woman under abstract circumstances and received an abstract trial on abstract issues. Murder cases are apt to be peculiarly individualized, and this case has its own distinctive features. It is in the light of these that we must decide whether Fisher’s death sentence should legally stand.
According to the more enlightened rule, appellate courts may review the facts in a capital case.3 Were such the *479scope of our review of death sentences, I should think it would be hard to escape what follows as the most persuasive reading of the record.
Fisher had learned from his boss of Miss Reardon’s complaint about the slackness of his work. On the fatal morning, Miss Reardon told Fisher that he was not doing the work for which he was being paid, and in the course of her scolding called him a “black nigger.” This made him angry — no white person, he claimed, had ever called him that — and he struck her. She ran screaming towards the window in the back of the room. Fisher ran out of the room and up the stairs. Her screaming continued. At the top of the stairs he saw a pile of wood lying by the fireplace. He seized a piece of wood, ran down the stairs and struck her on the head. The stick broke and he seized her by the throat. She continued to scream until she went limp. He then dragged her to the lavatory and left her there while he went back to clean up the spots of blood. She recovered sufficiently to scream again, and he returned to the lavatory and cut her slightly with a knife he carried in his pocket. The importance of the screaming is a key to the tragedy. It is difficult to disbelieve Fisher’s account that he never wanted to kill Miss Reardon but wanted only to stop her screaming, which unnerved him.
“She ran out from behind her desk, down toward the back, screaming.”
*480“The screaming seemed to have gotten on my nerves.”
“I was running on up the steps, with her all the time screaming.”
“She was still screaming, and I began choking her then.”
“I was just trying to keep her from making a noise.”
“. . . she started hollering and I tried to stop her from hollering.”
“Then I began choking her because she was still hollering.”
“. . . I did not strike her any more after the noise had ceased.”
“. . . she started hollering again.”
“She kept hollering, seemed like to me.”
“My idea was just trying to stop her from hollering, is all I can think about.”
“After that she stopped hollering.”
The next day he started to go to the Cathedral to work as usual. He made two attempts to enter the Cathedral grounds. About the first, he said he got “nervous and shaky, and [he] couldn’t go in there.” Later he “kept thinking about what [he] had done to her. [He] didn’t know whether she was dead or alive. [He] was afraid to go up there and tell them that [they] had had an argument or a fight.” When apprehended by two detectives, he said he “had some trouble with the lady out at the Cathedral.”
The evidence in its entirety hardly provides a basis for a finding of premeditation. He struck Miss Reardon when she called him “black nigger.” He kept on when her screaming frightened him. He did not know he had killed her. There is not the slightest basis for finding a motive for the killing prior to her use of the offensive phrase. Fisher, to be sure, had Miss Reardon’s ring in *481his possession. But it came off in his hand while he was dragging her, and he put it away when he reached home to conceal its possession from his wife. He did not run away and he cleaned up the blood “because [he] didn’t want to leave the library dirty, leave awful spots on the floor. [He] wanted to clean them up.” He treated the spots on the floor not as evidence of crime but as part of his job to keep the library clean. Fisher was curiously unconnected with the deed, unaware of what he had done. His was a very low grade mentality, unable to realize the direction of his action and its meaning. His whole behavior seems that of a man of primitive emotions reacting to the sudden stimulus of insult and proceeding from that point without purpose or design. Premeditation implies purpose and purpose is excluded by instantaneous action. Fisher’s response was an instinctive response to provocation, and premeditation means nothing unless it precludes the notion of an instinctive and uncalculated reaction to stimulus. Accordingly, if existing practice authorized us to review the facts in a capital case I should be compelled to find that the ingredients of murder in the first degree were here lacking. I would have to find that the necessary premeditation and deliberation for the infliction of a death sentence were wanting, as did the New York Court of Appeals in a case of singularly striking similarity. People v. Caruso, 246 N. Y. 437, 159 N. E. 390. It is significant that the Court of Appeals for the District of Columbia has heretofore deemed it within its duty to examine the evidence in order to ascertain whether a finding of premeditation and deliberation was justified. Bullock v. United States, 74 App. D. C. 220, 122 F. 2d 213.
But while it is not now this Court’s function to interpret the facts independently,4 the jury, under guidance appro*482priate for a murder case, might well have so interpreted them because the facts are persuasively so interpretable. If, under adequate instructions, it could have so found, the homicide falls outside the requirements for a finding of murder in the first degree. Congress in 1901 enacted a code for the District in which it joined the growing movement of dividing murder into degrees.5 Congress confined the death sentence to killing by premeditation; it required designed homicide, previous deliberation that life was to be taken, before the United States would take life in retribution.6 The division of murder into degrees arose *483from the steadily weakened hold of capital punishment on the conscience of mankind. See Calvert, Capital Punishment in the Twentieth Century (5th ed., 1936); Report from the Select Committee of the House of Commons on Capital Punishment, and Minutes of Evidence (1930). The crime of murder was divided into two classes, in some *484States very early,7 in recognition of the fact that capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation. It is this consideration that has led most of the States to divide common law murder into two crimes, and Congress followed this legislation. See Michael and Wechsler, A Rationale of the Law of Homicide (1937) 37 Col. L. Rev. 701, 703-704; Michael and Wechsler, Criminal Law and Its Administration (1940) 1269 et seq.
The bite of law is in its enforcement. This is especially true when careful or indifferent judicial administration has consequences so profound as does the application of legislation dividing murder into first and second degrees— consequences that literally make the difference between life and death. This places the guiding responsibility upon the trial court in no wise restricted by the course pursued by the defense. The preoccupation at the trial, in the treatment of the conviction by the court below and by the arguments at the bar of this Court, was with alluring problems of psychiatry. Throughout this melancholy affair the insistence was on claims of Fisher's mental deficiencies and the law's duty to take into consideration the skeptical views of modern psychiatry regarding the historic legal tests for insanity. I cannot but believe that this has diverted attention from the more obvious and conventional but controlling inquiry regarding the ab*485sence or presence of the requisite premeditation, under the circumstances of this case.
That the charge requested by the defendant and denied did not go to this issue of premeditation unambiguously but in an awkward and oblique way did not lessen the responsibility of the trial judge to bring this issue — it was the crucial issue — sharply and vividly to the jury’s mind. If their minds had been so focused, the jury might well have found that the successive steps that culminated in Miss Reardon’s death could not properly be judged in isolation. They might well have found a sequence of events that constituted a single, unbroken response to a provocation in which no forethought, no reflection whatever, entered. A deed may be gruesome and not be premeditated. Concededly there was no motive for the killing prior to the inciting “you black nigger.” The tone in which these words were uttered evidently pulled the trigger of Fisher’s emotions, and under adequate instructions the jury might have found that what these words conveyed to Fisher’s ears unhinged his self-control. While there may well have been murder, deliberate premeditation, for which alone Congress has provided the death sentence, may have been wanting.8 “While it is unlikely that the jury would *486return a verdict of murder in the first degree unless satisfied that the defendant, at the time he committed the offense, was capable of entertaining the malicious intent, we cannot, in a case of this kind, speculate as to what considerations entered into their verdict.” Sabens v. United States, 40 App. D. C. 440, 444. The same guiding consideration for reviewing a death sentence was pithily expressed the other day by the present Lord Chief Justice of England: “It is impossible to say what verdict would have been returned had the case been left to the jury with a proper direction.” Kwaku Mensah v. Rex, [1946] A. C. 83, 94. In that case, the Privy Council found inadequacy in the direction given by the trial court on considerations that were not mentioned in the courts below nor raised by the appellant. Neither should we permit a death sentence to stand that raises such doubts as does Fisher’s ■conviction on this record.
As I have already indicated, I do not believe that the facts warrant a finding of premeditation. But, in any event, the justification for finding first-degree murder pre*487meditation was so tenuous that the jury ought not to have been left to founder and flounder within the dark emptiness of legal jargon.9 The instructions to the jury on the vital issue of premeditation consisted of threadbare generalities, a jumble of empty abstractions equally suitable for any other charge of murder with none of the elements that are distinctive about this case, mingled with talk about mental disease. What the jury got was devoid of clear guidance and illumination. Inadequate direction to a jury may be as fatal as misdirection. The observations made by this Court in a civil case are especially pertinent to the duty of a federal judge in a trial for murder: . . it is the right and duty of the court to aid [the jury] ... by directing their attention to the most important facts, ... by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. . . . Constituted as juries are, it is frequently impossible for them to discharge their function wisely and well without this aid. In such cases, chance, mistake, or caprice, may determine the result.” Nudd v. Burrows, 91 U. S. 426, 439.
Only the other day we exercised our supervisory responsibility over the lower federal courts to assure against the possibility of unfairness in the operation of the jury system *488in ordinary civil suits. Thiel v. Southern Pacific Co., 328 U. S. 217. By how much more should we guard against a fatal mishap where life is at stake. This Court in reviewing a conviction for murder in the federal courts ought not to be behind the House of Lords and the Privy Council in rejecting strangling technicalities. See Mancini v. Director of Public Prosecutions, [1942] A. C. 1, 7-8;10 Kwaku Mensah v. Rex, supra. It should be guided, as was the Privy Council in the case of a lowly West African villager, by broad considerations of justice so as to avoid *489the mistake of affirming a death sentence which the jury-may well not have returned had they had a direction that would have informed their understanding and guided their judgment. In the circumstances of this case, failure to charge the jury adequately was to deny Fisher the substance of a fair trial.
Men ought not to go to their doom because this Court thinks that conflicting legal conclusions of an abstract nature seem to have been “nicely balanced” by the Court of Appeals for the District of Columbia. The deference which this Court pays to that Court’s adjudications in ordinary cases involving issues essentially of minor or merely local importance seems out of place when the action of this Court, no matter how phrased, sustains a death sentence at the seat of our Government as a result of a trial over which this Court, by direction of Congress, has the final reviewing power. This Court cannot escape responsibility for the death sentence if it affirms the judgment. One can only hope that even more serious consequences will not follow, which would be the case if the Court’s decision were to give encouragement to doctrines of criminal law that have only obscurantist precedents of the past to recommend them. Moreover, a failure adequately to guide a jury on a basic issue, such as that of premeditation on a charge of murder in the first degree, does not reflect a “long established” practice, and one hopes will not become “deeply rooted,” in the District.11 *490Quite the contrary standard is indicated by an earlier opinion of the Court of Appeals. See McAffee v. United States, 70 App. D. C. 142, 105 F. 2d 21, 26.
The judgment should be reversed and a new trial granted.
M’Naghten’s Case, 10 Cl. & Fin. 200 (1843). More than sixty years ago Sir James Fitzjames Stephen brought weighty criticism to bear on the M’Naghten case. 2 Stephen, A History of the Criminal Law of England (1883) 153 et seq.; for more recent consideration of the case, see Glueck, Mental Disorder and the Criminal Law (1925) c. 6; Cardozo, What Medicine Can Do For Law (1930) 28-35.
See, e. g., White, Insanity and the Criminal Law (1923); Abraham-sen, Crime and the Human Mind (1944); Lindner, Rebel Without A Cause (1944); Radzinowicz & Turner, eds., Mental Abnormality and Crime (1944); Reik, The Unknown Murderer (1945); see also, Hall, Mental Disease and Criminal Responsibility (1945) 45 Col. L. Rev. 677, 680-84, and authorities cited therein.
See, e. g., Annotated Laws of Massachusetts, c. 278, § 33E; Commonwealth v. Gricus, 317 Mass. 403, 406, 58 N. E. 2d 241; Massachusetts Judicial Council, Third Report (1927) 40-43, 131-35; Massachusetts Judicial Council, Thirteenth Report (1937) 28-30; New York Constitution, Article 6, § 7; People v. Crum, 272 N. Y. 348, 6 N. E. 2d 51; Cardozo, Jurisdiction of the Court of Appeals (2d ed., 1909) §51; American Law Institute, Code of Criminal Procedure (Official Draft, 1930) §457 (2); Orfield, Criminal Appeals in America (1939) 83 et seq.
The reasons for such review are succinctly stated in the Thirteenth Report of the Massachusetts Judicial Council, supra, at 29: “In *479substance this [denial of the right to consider the facts by the appellate court] means that there is no review of the discretion of the single judge. Thus a matter of life or death, once treated [in Massachusetts] with the utmost care, even beyond the requirements of the law, has now been committed to a single judge of the Superior Court, with no review whatever on its most vital aspects. Such a situation places an unfair responsibility upon the trial judge and upon the governor, is a potential threat to justice and is not reassuring to the public who have a right to demand that judicial consideration should be exhausted before a man is condemned to death.”
As to certain classes of litigation that come here, this Court has, of course, always had power to review the evidence. E. g., “[Since] by an appeal, except when specially provided otherwise, the entire *482case on both law and facts is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge.” In re Neagle, 135 U. S. 1, 42.
District of Columbia Code (1940) § 22-2401: “Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.”
§22-2402: “Whoever maliciously places an obstruction upon a railroad or street railroad, or displaces or injures anything appertaining thereto, or does any other act with intent to endanger the passage of any locomotive or car, and thereby occasions the death of another, is guilty of murder in the first degree.”
§ 22-2403: “Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree.”
The legislative history of these sections is meagre. The separation of the crime of murder into two degrees seems to have been first proposed for the District in the Code of 1857. C. 130, §§ 1-2. That Code was never enacted by Congress. The present provisions are *483the result of a Code prepared by Judge Cox and enacted in 1901. 31 Stat. 1189, 1321. In an historical note that precedes the Code, Judge Cox stated that it was to have been based on the laws of Maryland. District of Columbia Code (1940 ed.) xiv. In a letter to the Washington Board of Trade, however, Judge Cox stated that the Code was based on the laws of Maryland, Virginia, New York, and Ohio. Report of the Washington Board of Trade, November 14,1898, pp. 23-24. And the Washington Law Reporter, vol. 26, p. 801, states that the “portions of the work relating to crimes and punishments follow the statutes of New York in creating degrees in the crime of murder.” A comparison of the Code with the New York Penal Code of 1898, §§ 183, 183a, 184, bears out this statement, though the exact language of the New York statute was not adopted.
The reports of each of the four States, however, up to the time of the enactment of the District Code, indicates unanimity in one essential element. For a homicide to constitute murder in the first degree, the jury must find in addition to the element of intent to kill, premeditation and deliberation. E. g., Spencer v. State, 69 Md. 28 (1888); Leighton v. People, 88 N. Y. 117 (1882); People v. Majone, 91 N. Y. 211 (1883); People v. Conroy, 97 N. Y. 62 (1884); People v. Hawkins, 109 N. Y. 408, 17 N. E. 371 (1888); People v. Barberi, 149 N. Y. 256, 43 N. E. 635 (1896); Ohio v. Neil, Tappan (Ohio) 120 (1817); State v. Turner, Wright (Ohio) 20 (1831); State v. Gardiner, Wright (Ohio) 392 (1833); State v. Thompson, Wright (Ohio) 617 (1834); Shoemaker v. State, 12 Ohio 43 (1843); Ohio v. Brooks, 1 Ohio Dec. 407 (1851); Fouts v. State, 8 Ohio St. 98 (1857); State v. Cook, 2 Ohio Dec. 36 (1859); Burns v. State, 3 Ohio Dec. 122 (1859); State v. Maxwell, Dayton (Ohio) 362 (1867); Zeltner v. State, 32 Ohio C. C. 102 (1899); Commonwealth v. Jones, 1 Leigh (Va.) 598 (1829); Dejarnette v. Commonwealth, 75 Va. 867 (1881); Hite v. Commonwealth, 96 Va. 489, 31 S. E. 895 (1898); Jackson v. Commonwealth, 97 Va. 762, 33 S. E. 547 (1899).
Pennsylvania enacted this type of legislation in 1794. Pennsylvania Laws, 1794, c. 257, §§ 1-2. This early statute has served as the pattern upon which most legislative action with a similar purpose has been based. See Michael and Wechsler, A Rationale of the Law of Homicide (1937) 37 Col. L. Rev. 701, 703-704; Michael and Wechsler, Criminal Law and Its Administration (1940) 1270-73. The District Code does not depart very far from the language of the original Pennsylvania statute; nor did the statute of the Territory of Utah construed by this Court in Hopt v. People, 104 U. S. 631, 632.
Federal judges are not referees in sporting contests. Their duty to keep a trial in the course of justice is especially compelling where the penalty for conviction is death. The kind of guidance that a trial judge should give a jury in a case like this is well illustrated by Judge Andrews in People v. Caruso, 246 N. Y. 437, 159 N. E. 390. E. g., “But was there premeditation and deliberation? . . . Time to deliberate and premeditate there clearly was. Caruso might have done so. In fact, however, did he?
“Until the Saturday evening Caruso had never met Dr. Péndola. Nothing occurred at that interview that furnished any motive for murder. Then came nervous strain and anxiety culminating in grief, deep and genuine, for the death of his child. Brooding over his loss, *486blaming the doctor for his delay in making the promised visit, believing he had killed the boy by his treatment, the doctor finally enters. And when told of the child’s death he appears to laugh. This added to his supposed injuries would fully account for the gust of anger that Caruso says he felt. Then came the struggle and the homicide.
“As has been said, Caruso had the time to deliberate, to make a choice whether to kill or not to kill — to overcome hesitation and doubt — to form a definite purpose. And where sufficient time exists very often the circumstances surrounding the homicide justify — indeed require — the necessary inference. Not here, however. No plan to kill is shown, no intention of violence when the doctor arrived — only grief and resentment. Not until the supposed laugh did the assault begin. . . . The attack seems to have been the instant effect of impulse. Nor does the fact that the stabbing followed the beginning of the attack by some time affect this conclusion. It was all one transaction under the peculiar facts of this case. If the assault was not deliberated or premeditated then neither was the infliction of the fatal wound.” 246 N. Y. at 445-46.
“. . . It is not too much to say of any period, in all English history, that it is impossible to conceive of trial by jury as existing there in a form which would withhold from the jury the assistance of the court in dealing with the facts. Trial by jury, in such a form as that, is not trial by jury in any historic sense of the words. It is not the venerated institution which attracted the praise of Blackstone and of our ancestors, but something novel, modern, and much less to be respected.
“In the Federal courts the common-law doctrine on this subject has always held.” Thayer, Preliminary Treatise on Evidence (1898). 188, n. 2.
“Although the appellant’s case at the trial was in substance that he had been compelled to use his weapon in necessary self-defence— a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal — it was undoubtedly the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the- evidence given, and which would reduce the crime from murder to manslaughter. The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. Thus, in Rex v. Hopper [(1915) 2 K. B. 431], at a trial for murder the prisoner’s counsel relied substantially on the defence that the killing was accidental, but Lord Reading C. J., in delivering the judgment of the Court of Criminal Appeal, said [id. at 435]: 'We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence, even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence — we say no more than that — upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand.’ ”
The only authority adduced for what the Court terms long-established practice is United States v. Lee, 4 Mackey (D. C.) 489 (1886). But that case was decided while common law murder was the law of the District. The enactment of the Code rendered that case’s doctrine invalid. Counsel for the Government, a distinguished lawyer, Mr. A. S. Worthington, pointed to the distinction in his argument: “In jurisdictions where murder is divided into two degrees — murder in the first degree requiring deliberation and premeditation; in other words, actual malice — it has been frequently held that evidence of mental *490excitement resulting from drunkenness and, perhaps, also of other abnormal conditions of the mind not amounting to insanity, may reduce an unprovoked homicide to murder in the second degree; but it has always been held that such evidence cannot of itself reduce the crime to manslaughter.” Id. at 493. The change wrought by Congress is reflected in Sabens v. United States, 40 App. D. C. 440; Bishop v. United States, 71 App. D. C. 132, 107 F. 2d 297; Bullock v. United States, 74 App. D. C. 220, 122 F. 2d 213, 214.