(dissenting in part and concurring in part):
At the close of all the evidence, counsel representing the appellants moved for a judgment of acquittal as to first degree murder on the ground there was insufficient proof of premeditation and deliberation.1 I think the motion should have been granted and the case submitted to the jury on the lesser included offenses of second degree murder and manslaughter.
I
“Premeditation and deliberation” were introduced into the law of homicide as a result of eighteenth century opposition to the widespread use of capital punishment.2 At common law there were no degrees of murder, and all murders were punishable by death. In 1794, the Pennsylvania Assembly, desiring to make punishments less “sanguinary,” 3 enacted the following statute changing the common law and establishing two classes of murders:
“Whereas the design of punishment is to prevent the commission of crimes, and to repair the injury that hath been done thereby to society or the individual, and it hath been found by experience, that these objects are better obtained by moderate but certain penalties, than by severe and excessive punishments: And whereas it is the duty of every government to endeavour to reform, rather than exterminate offenders, and the punishment of death ought never to be inflicted, where it is not absolutely necessary to the public safety: Therefore,
“Sect. I. Be it enacted by the Senate and House of Representatives of the commonwealth of Pennsylvania, in General Assembly met, and it is hereby enacted by the authority of the same, That no crime whatsoever hereafter committed (except murder of the first degree) shall be punished with death in the state of Pennsylvania.
“Sect. II. And whereas the several offences, which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness that it is unjust to involve them in the same punishment: Be it further enacted by the Authority aforesaid, That all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing * * * shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder in the second degree; * * *.”4
Other states 5 and the District of Columbia,6 following the lead of Pennsylvania, have established two degrees of murder, using the same words, “deliberate and *96premeditated,” to distinguish between them.
The language of the Pennsylvania statute, and the history surrounding its enactment, leave no doubt that deliberation and premeditation are basic elements of murder in the first degree.7 The dreaded punishment of death is imposed only for those murders which are premeditated and deliberate, such as those “perpetrated by means of poison, or by lying in wait.” 8 As this court has held, the required deliberation involves, at least, a process of thought which is carried on some appreciable time before the killing.9 To require less is to obliterate the distinction between first and second degree murder and thus to frustrate the sole purpose of the statute.10
The Government’s evidence shows that the appellants arrived at their victim’s home unarmed. Compared with their victim, they were men of slight stature. They were admitted after knocking. Subsequently a fight developed in which the victim was killed by being struck on the head with part of a wooden table top, the table presumably having been broken in the fight. Appellants were apparently unaware the victim was dead.11 However, they took his wallet and left his apartment.
If this were all the evidence, it would not seriously be argued that a sufficient showing of premeditation and deliberation had been made to take the case to the jury on the first degree murder charge. Therefore the Government relies *97on several occurrences taking place some time before the killing. The appellants were seen driving slowly by the victim’s house on the afternoon before the killing. About an hour before the killing, they drove by and one of them pointed out the house. One of the appellants picked up a glove before entering the victim’s apartment on the night of the killing. Parts of a conversation in a restaurant were overheard shortly before the crime. The appellants were talking with George Bennett, a brother of the victim. One of the appellants was heard to ask Bennett “if he hit a man in the chest, could you break a rib and fracture or puncture a lung, could it kill a person,” to which Bennett replied, “You have to hit a man pretty hard.” As they were leaving the restaurant, Bennett said to the appellants, “If you do a good job you will get a bonus.”
This evidence, while it may suggest a deliberate premeditated intent to enter the victim’s home for an illegal purpose,12 is too ambiguous to support a finding of an intent to kill.13 It is consistent with either an intent to kill or an intent to injure but not kill. Thus, in logic as well as in law, it does not necessarily provide proof of the specific intent to commit premeditated murder.
Criminal convictions, particularly in capital cases, may not rest on speculation and conjecture.14 Evidence which creates suspicion, even grave suspicion, of guilt is not sufficient to sustain a verdict of guilt.15 This court has held that the trial judge must require acquittal when the evidence is such, as to any element of the offense charged, that a reasonable man must necessarily have a reasonable doubt.16 Applying this standard, I do not think the evidence here was sufficient to submit the question of premeditation and deliberation to the jury. Therefore I would reverse the conviction of first degree murder.
II
These death sentences, in my judgment, may not stand for another reason. The defendants were not afforded adequate opportunity to offer evidence in mitigation.17 The statute provides no criteria to guide the jury in making its determination between life and death. But this absence of statutory guidance does not necessarily limit the jury’s punishment consideration to the facts developed in proving the defendants guilty of the crime charged.
Ordinarily, in sentencing, such information as the background of the offender, his prior criminal record, his physical and *98mental health, or lack thereof, is considered in imposing a proper penalty. Rule 32 of the Federal Rules of Criminal Procedure requires a pre-sentence report containing “any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence.” 18 One of the purposes behind the traditional right of allocution, which has special status in capital cases,19 is to allow the convicted criminal to make a plea for leniency before the court, or, in this case, the jury, which is about to pronounce the sentence.20 Modern concepts of individualized punishment stress the importance of considering, for purposes of fixing the penalty, information which is not related to the issue of guilt.21 Yet none of this information was available to the jury which sentenced these defendants to die.
In giving the jury discretion to fix punishment in a capital case, Congress did not, in my opinion, demonstrate a purpose to deprive the defendant of the benefit of pre-sentence information and of his traditional right of allocution. Serious questions of constitutionality under the due process clause would surely arise from any attempt, limited to capital cases, to deprive a defendant of the opportunity to inform the court or the jury with respect to its sentencing function.
These constitutional questions can be avoided by requiring that trials under 22 D.C.Code § 2044 (1961) proceed in two stages.22 In the first stage the jury would determine guilt or innocence. If the defendants are found guilty of murder in the first degree, facts in mitigation or aggravation should then be presented to the same jury so that it may have a proper predicate on which to base its judgment on whether the defendants will live or die.23 By using this two-step procedure, the purpose of 22 D.C.Code § 2404 that the jury determine the sentence in capital cases is effectuated without frustrating the policy underlying Rule 32, namely, that the sentence in criminal cases be based on allocution and pre-sentence information, and not merely on the facts considered in determining guilt or innocence.24
Chief Judge Bazelon concurs in the foregoing Part II of this opinion.
Ill
With respect to the inadequacy of the jury poll and the court’s instruction to the jury, I concur in Judge Fahy’s opinion.
WILBUR K. MILLER, Senior Circuit Judge, with whom BASTIAN, Senior Circuit Judge, and DANAHER and BURGER, Circuit Judges, join, concurring in that part of the judgment which affirms the convictions, and dissenting from that *99portion which sets aside the death sentence and orders resentences of life imprisonment : To put these cases in proper focus, I summarize their origin and development. In a three-count indictment returned April 29, 1963, a grand jury-in the District of Columbia accused the appellants, Joseph C. Frady and Richard A. Gordon, of (1) the premeditated murder of Thomas Bennett, (2) the murder of Bennett while perpetrating a robbery, and (3) robbery of Thomas Bennett.1
Upon their pleas of not guilty, appellants were tried to a jury in the District Court presided over by Judge George L. Hart, Jr. The trial began October 29, 1963, and ended on November 7, when verdicts were returned of not guilty under the count charging murder while perpetrating a robbery, but guilty under the other two counts of robbery and premeditated murder. As to the latter the trial judge had carefully instructed the jury in strict accordance with the recently enacted statute: 2 that a verdict of guilty of murder in the first degree as charged would result in the death penalty unless it included a unanimous recommendation of life imprisonment or a report of disagreement as to punishment. Having been so instructed, the jury returned a verdict under the premeditated murder count of “guilty as charged of first degree murder” without recommendation of life imprisonment or report of disagreement as to punishment. At the polling of the jury, each member said, “Guilty as charged of first degree murder.”
Accordingly, on December 6, 1963, appellants were sentenced to death upon the first degree murder convictions, as required by the new statute. They were also sentenced to imprisonment from five to 15 years on the robbery convictions. These appeals followed and were heard by us sitting en banc.
We are unanimous in affirming the robbery convictions, so nothing more about that need be said. Eight of us are *100In favor of affirming the first degree murder convictions — all except Judge Wright, who thinks acquittal of first degree murder should have been directed. Nevertheless, I shall state the facts somewhat in detail so the motivation of the jury’s verdict may be understood. And, as these are capital cases, I think it fitting and proper also to discuss appellants’ arguments for reversal which are being rejected.
Between 8:30 and 9:00 o’clock in the evening of March 13, 1963, Mrs. Sophia Huth heard knocking at the front door of the attached house next door — 1109 Savannah Street, S. E. — and soon thereafter heard noises therefrom as though a fight were in progress. Then, when she heard a man’s voice screaming for help, she telephoned the police. A patrol wagon with two policemen aboard arrived within two or three minutes and one of the officers alighted. He saw the appellants Frady and Gordon just as they came out the front door of 1109, and heard one of them say, “The cops,” as they ran away. This officer pursued them on foot and the other followed them with the wagon.
The appellants turned the corner into 11th Place and got into a car which was parked there with its motor running. A woman, afterward identified as Mrs. Elizabeth Ryder, a friend of Gordon, was already seated in the automobile. As appellants approached the waiting car, the officer pursuing on foot saw one of them throw something to the paving under an automobile just behind the one they entered. Before they could pull away, the patrol wagon arrived and blocked them. As the wagon approached, Mrs. Ryder heard one of her companions say, “They’ve got us.” She told the jury she saw no blood on the appellants’ clothing when they left the car but noticed that both were bloody when they returned. At the officer’s command, the appellants and the woman got out and were taken into custody. Frady and Gordon were unarmed, but both had fresh blood on their clothing and one had a bloody face as well. An expert testified that the blood on the appellants’ clothes was of the same type as that of Thomas Bennett. The bloody boot of one of the appellants had a metal heel plate partly circular in shape.
George Wesley, one of the two officers who first arrived at the scene, testified that, after appellants were placed in the patrol wagon, he heard one of them say that “that old man back at the house was in bad shape.” This was corroborated by Mrs. Ryder, who testified that, after she was placed in the patrol wagon with appellants, she heard Gordon say, “He looks like he’s pretty messed up,” to which Frady replied, “He looks like he’s dead.”
In the meantime, there had been developments at 1109 Savannah Street. Two more officers had arrived there in another police car. They had entered and found the front room in a shambles. The articles of furniture were either broken or in complete disarray and blood was spattered on the walls. The body of Thomas Bennett lay in a pool of blood on the floor near the foot of the stairs. He had been cruelly murdered. His head had been caved in by several blows from a blunt instrument and a mixture of blood and brains was coming from the wounds. Subsequent examination of the body revealed wounds or bruises partly circular, apparently inflicted by some article of that shape. On or under the body were broken pieces of a table top, one of which was later described by a police witness, during cross-examination by appellants’ counsel, as the murder weapon. He had conducted a test at the morgue which showed that this particular piece of wood fitted into the wounds on Bennett’s head from which he died. One of the victim’s eyes had been knocked from its socket and was lying on his cheek when the officers arrived.
Some twenty minutes later, the officer who had observed one of the appellants throw something into the street just before he entered the waiting car returned to the scene and found a wallet contain*101ing $87.00 in currency and personal papers which identified it as the property of Thomas Bennett. He also found there a pair of gloves.3
The first reason for reversal advanced by appellants is that the court erred in denying their motion for a directed verdict of not guilty under the first count which charged premeditated murder.4 In their brief they admit, in eifeet, they were in the house at 1109 Savannah Street and had a fight with Thomas Bennett, as a result of which he died. They say:
“The fact that the defendants were in a fight with the deceased, shortly before the death of the deceased, is not seriously disputed. The killing itself was particularly violent, but the very violence itself and an utter lack of possession of any dangerous weapon, indicate that it was an impulsive killing and not done with deliberation and premeditation.” (Appellants’ emphasis.)
I do not agree with this contention that the violence of the killing and the fact that it was done with a piece of table top instead of with a traditional dangerous weapon indicate that it was impulsively done, without premeditation. Quite to the contrary, I think the brutality of the killing tends to indicate premeditation. It was so held in Evans v. United States,5 where the Tenth Circuit said:
“It is further contended that the evidence did not show malice and premeditation to warrant a verdict of guilty of murder in the first degree. It is stated in Wharton on The Law of Homicide, 3rd Ed., § 96, as follows: Tf the act which produces death was attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit, the law will imply malice without reference to what was passing in the mind of the slayer at the time of the fatal act.’
“The fact that cruelty or brutality is manifested in the killing will raise an inference of malice. 29 C.J. 1099, § 73. The length of time of premeditation is not material, and the circumstances of the act committed by the appellant show premeditation. Suhay v. United States, 10 Cir., 95 F.2d 890. Consequently, there is no merit in this contention of appellant.”
I assume the appellants mean to argue that there was not time for Thomas Bennett’s assailants to premeditate murder before the fatal blows were struck. We have held that time for premeditation must be shown before a killing can be murder in the first degree. But in Bostic *102v. United States 6 this court pointed out that the authorities agree that no particular length of time is necessary for deliberation; that it is not the lapse of time itself which constitutes deliberation, but the reflection in the mind of the accused concerning a design or purpose to kill; that the jury must determine from the circumstances preceding and surrounding the killing whether reflection and consideration amounting to deliberation actually occurred.
The Bullock case,7 cited by the appellants, does not help them. There we adhered to the Bostic ruling and simply said the evidence in that case showed the design to kill was formed practically instantaneously with the act of killing and that, consequently, there was no opportunity for premeditation. We said, 74 App.D.C. at page 221, 122 F.2d at page 214:
“ * * * There is nothing deliberate or premeditated about a killing which is done within a second or two after the accused first thinks of doing it; or, as we think the evidence shows, instantaneously, as appellant, interrupted in his quarrel, turned and fired. * * * ”
And in the Bostic case we approved the statement of the rule of those courts which hold that some appreciable time must elapse in order that reflection and consideration amounting to deliberation may occur, but we recognized “that this does not require the lapse of days or hours, or even minutes.”
The Bostic ruling requires us to determine, from the circumstances preceding and surrounding the killing, whether the jury was justified in finding that it was in fact premeditated. Certainly the circumstances surrounding it show the purpose to kill was not formed instantaneously as it was in the Bullock case. There was a vicious assault which was prolonged sufficiently before the final blows were struck to show a deliberate and premeditated killing. For example, the fight with Thomas Bennett, in which the appellants’ brief admits they were engaged, lasted for at least ten minutes, according to the testimony of the neighbor, Mrs. Huth. The physical condition of the room showed also that the encounter must have continued at least that long. It was plain from the condition of the victim’s body that he had been struck a number of times in addition to the fatal blows, and that he had been stamped upon by a.heavy heel with a metal plate. All this indicates clearly that there was ample time for the premeditation which the jury found preceded the killing.
There was, moreover, ample evidence in addition to that just described from which the jury could conclude, as it did, that the murder was done purposely, “of deliberate and premeditated malice.” At 4:30 p. m. on the day of the crime, two women were standing at different windows in an apartment building opposite 1109 Savannah Street. They testified that they saw an old car occupied by two white persons driving slowly by. Both identified the driver of the car as the appellant Frady. Mrs. Elizabeth Ryder testified that she was in a car with Frady and Gordon which was driven along the 1100 block of Savannah Street about 7:00 p. m. on March 13, 1963. She heard one appellant say “something about that is the house over there” and both appellants looked toward the south side of the street where the victim’s house was located. From the testimony of these three witnesses, the jury could have concluded that Frady and Gordon twice reconnoitered so they would know Bennett’s house when they returned later in the evening after darkness had completely fallen.
There was still further reason for the jury’s conclusion of premeditation in Mrs. Ryder’s testimony of the events which occurred after her first drive with Frady and Gordon along the 1100 block of Savannah Street. She and the appellants *103proceeded to a restaurant at 19th Street and Pennsylvania Avenue, N. W., where Gordon’s sister, Grace Bennett, was employed as a waitress. Grace’s husband, George Bennett, a brother of the murder victim, joined appellants and Mrs. Ryder at the restaurant. The latter testified that she heard George Bennett tell appellant Frady that “he needed time to get the furniture and things settled.” She heard Frady ask Bennett “if he hit a man in the chest, could you break a rib and fracture or puncture a lung, could it kill a person,” to which George Bennett replied, “You have to hit a man pretty hard.” Just before appellants and Mrs. Ryder left the restaurant, she heard George Bennett say to her companions, “If you do a good job you will get a bonus.” From this testimony, which was undenied, the jury could well have concluded that Frady and Gordon were assassins hired by George Bennett to do away with his brother in order to get his furniture and other possessions.
Mrs. Ryder was with the appellants when they left the restaurant and drove to 11th Place where they parked and got out of the car, leaving the motor running. She testified as follows:
“A They started to leave the car and I asked where they were going and they said just around the corner.8
“Q All right. And did the defendants get out of the car at this time?
“A Yes.
“Q And did you see the defendant Gordon do anything prior to getting out?
“A He reached down beside him and picked up an object.
“Q And can you describe what the object was?
“A I don’t know exactly what they were. It looked like a cuff of a glove or heavy material of some kind.” 9
From the foregoing, I conclude the jury was amply justified in finding that the appellants were guilty of deliberate premeditated murder.
It is further contended by the appellants that the bloody clothing and boot were inadmissible because the articles were taken from them as a result of what they assert was an unlawful arrest; that is to say, they claim that the officers did not have probable cause to take them into custody just after they entered the parked car on 11th Place.
These officers had responded to a reported call for help from the premises where a fight had been in progress. They saw the appellants leave those premises, heard one of them say, “The cops,” as they ran away, and then pursued and saw them get into a car which awaited them with its motor running. To say that in such circumstances there is no reasonable basis for an arrest without a warrant is to be unrealistic in the extreme; it is indeed a frivolous contention. There was no time to ask a magistrate for a warrant; the fleeing criminals were about to escape in an automobile. The officers would have been remiss in their duty had they failed to detain the appellants on that occasion merely because they had not seen the assault upon the victim and did not then know that murder had just been done.
Appellants also argue that the trial court erred in rejecting their offer to prove that Thomas Bennett, who lived alone at 1109 Savannah Street, had been unemployed for ten years but during that time had accumulated over $12,000 in bank accounts; and that, some two months after the murder, a private detective employed by their attorney, had discovered in Bennett’s house a large amount of drugs known as “goof balls,” hypnotics principally used to relieve the pain of withdrawal from narcotics, 5,000 *104empty gelatin capsules, and a quantity of the utensils used by drug addicts.
In support of their contention that such evidence was relevant, the appellants say:
“ * * * The purpose of this evidence was two-fold, first, to refute the character evidence adduced by the prosecution at the beginning of the case and to lay a predicate in the evidence to argue that Bennett was not the quiet, peace loving, law abiding citizen brutally attacked in his home, as the government argued in its rebuttal;' and as evidence that this character of a man, in toto, was not un-aggressive. * * * ”
They had previously said in their brief, “[T]he evidence of the character of the deceased for violence, vel non, was adduced by the prosecution during the testimony of Dr. McCawley, its first witness.”
I observe, however, that the Government used Dr. McCawley merely to identify the body in the morgue as that of Thomas Bennett. By asking him about several other matters, including Bennett’s bizarre behavior at his mother’s funeral and his history of some mental disturbance — far beyond the scope of the Government’s direct examination, — the appellants’ attorney made Dr. McCawley his witness, as the trial judge suggested.10 Government counsel, as he had a right to do, then cross-examined Dr. McCawley as to the matters concerning which appellants’ attorney had made him his own witness. During that cross-examination, Dr. McCawley said he had never known Thomas Bennett to be violent. Thus it was a statement by the appellants’ witness that they sought to contradict by the proffered testimony that, although he had not worked for ten years, Bennett had accumulated a substantial sum of money during that time, and that two months after his murder his house contained paraphernalia used in preparing and administering narcotics.
I think the trial judge properly excluded such testimony. If believed, it may have tended to show Bennett was engaged in the illicit drug traffic, but that would have had no relevance: it would not have in any degree justified a murderous assault upon him. Moreover, the admission of evidence that Thomas Bennett had a large sum of money on deposit might well have been prejudicial to the appellants, for it might have been an additional reason, in the eyes of the jurors, for George Bennett to engage the appellants to eliminate his bachelor brother Thomas.
It is indicated in the brief for appellants that they wished to show Thomas Bennett was a quarrelsome and violent man, on the idea it would support a theory of self-defense on their part. They went to his house unarmed, says their brief, and knocked before entering. But there was no suggestion or hint of self-defense at the trial: there was nothing to indicate that, after entering Bennett’s house, either appellant had reason to believe or did believe that he was in imminent danger of loss of life or great bodily harm at the hands of Bennett. In contrast to the condition of the murdered man, it does not appear that the appellants sustained any injury in the struggle, except that Gordon had a cut on his forehead.
*105The suggestion is made for the first time on appeal that Bennett may have been the aggressor in the fight with the appellants, and that therefore they acted in self-defense when they battered him to death. It has already been pointed out, however, that there were circumstances before and during the killing which at least justified, if they did not require, the inference that their attack on Bennett was premeditated. That being so, they are in no position now to assert self-defense even if they had proved they were reasonably fearful that their lives were in danger or that they might suffer great bodily harm. Long ago this court had occasion to say that a defendant who commits a premeditated assault upon his victim cannot claim that he killed in self-defense. This statement is found in Hopkins v. United States, 4 App.D.C. 430, 443 (1894):
“It is laid down in textbooks of high authority, and also in decided cases, that if it appears that the conflict was in any way premeditated by the defendant, the defense [self-defense] can no longer be set up. And it must be proven that the assault upon the defendant was imminently perilous. The defendant must show clearly that he was attacked, and that he had good reason to believe that he was in imminent peril of his life or of great bodily harm. * * *”
This rule that a defendant who commits a premeditated assault upon another may not claim self-defense is subject to an exception, as pointed out by Mr. Justice Harlan in Rowe v. United States.11
“ * * * In Parker v. State, 88 Ala. 4, 6, 7, 7 South. 98, 99, the court, after adverting to the general rule that the aggressor cannot be heard to urge in his justification a necessity for the killing which was produced by his own wrongful act, said: ‘This rule, however, is not of absolute and universal application. An exception to it exists in cases where, although the defendant originally provoked the conflict, he withdraws from it in good faith, and clearly announces his desire for peace. If he be pursued after this, his right of self-defence, though once lost, revives. “Of course,” says Mr. Wharton, in referring to this modification of the rule, “there must be a real and bona fide surrender and withdrawal on his part; for, if there be not, then he will continue to be regarded as the aggressor.” 1 Whart.Cr.Law, (9th Ed.) § 486. The meaning of the principle is that the law will always leave the original aggressor an opportunity to repent before he takes the life of his adversary. Bish.Cr.Law (7th Ed.) § 871/ Recognizing this exception to be a just one, the court properly said, in addition: ‘Due caution must be observed by courts and juries in its application, as it involves a principle which is very liable to abuse. The question of the good or bad faith of the retreating party is of the utmost importance, and should generally be submitted to the jury in connection with the fact of retreat itself, especially where there is any room for conflicting inferences on this point from the evidence/ Both parties to a mutual combat are wrong-doers, and the law of self-defence cannot be invoked by either, so long as he continues in the combat. * * *”
The exception has no application here, for there is nothing in the evidence to indicate that the appellants, if they committed a premeditated assault upon Thomas Bennett as the jury found, ever retreated or in any way indicated they had abandoned their deliberate purpose and were thereafter attacked by Bennett, so that they feared he might take their lives or do them enormous bodily harm.
Another argument presented by appellants is that the District Court failed adequately to instruct on the issue of *106circumstantial evidence. They say the following instruction, approved in Carter v. United States,12 should have been given:
“If you find that these inconsistent theories [a hypothesis consistent with guilt and a hypothesis consistent with innocence] are in balance, you must acquit, because to establish guilt, any reasonable hypothesis of innocence must be excluded by the evidence.”
It is noted, however, that the Carter opinion merely approved this language in the trial judge’s charge, and did not say it must be used. In Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), in upholding the trial court’s refusal to instruct that “where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt,” the Supreme Court said:
“ * * * There is some support for this type of instruction in the lower court decisions [cases cited], but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect [cases and other authorities cited].”
The Carter court, writing in 1957, of course was familiar with the Supreme Court’s Holland case of 1954. So, it must be concluded that in the Carter case the court considered that the jury had not been otherwise properly instructed on the standard for reasonable doubt, and that therefore the additional instruction on circumstantial evidence was necessary.
In the later case of Hunt v. United States,13 we said:
“ * * * The ultimate test for the jury in a criminal case, however, is whether the defendant has been proved guilty beyond a reasonable doubt. This applies whether the evidence relied on for conviction is direct or circumstantial, or both. * * *»
Following what the Supreme Court said is “the better rule,” we held that “where the jury is properly instructed otherwise on the standard for reasonable doubt, a charge in the language of Carter is not required.” In the present case, the trial judge’s charge on reasonable doubt is not attacked, and I observe that it was thoroughly accurate and adequate in setting forth the governing standards. That being so, the court is required by the Holland case to hold that the circumstantial evidence instruction the appellants say should have been given would have been confusing and incorrect.
Appellants’ contention that Mrs. Ryder should not have been allowed to refresh her memory by referring to her written statement is so insubstantial that it is not necessary to discuss it. And their further contention that the evidence of robbery was insufficient to sustain a conviction under that count is patently frivolous. The taking of Bennett’s wallet was robbery whether it was taken before or after he was murdered.14 Anyway, appellants’ complaint of their conviction of robbery is moot in view of the fact that their conviction under the premeditated murder count, which carries with it a greater penalty, is being upheld.
Complaint is made that the trial judge excessively examined a defense witness, to the prejudice of appellants. I think *107the criticized questions were proper; but, whether so or not, they were all asked out of the presence of the jury and could not possibly have influenced that body.
Such is the situation with respect to which the order set forth above is being entered by the court — an order in which I concur in part and from which I dissent in part. It begins thus:
“The judgments of conviction of first degree murder and of robbery are affirmed.”
With this much of the order I fully agree, for the reasons given in the preceding portion of this opinion. It reflects the view of all of us except Judge Wright, who dissents from the affirmance of the first degree murder convictions.
There the substantial unanimity of the court ends. The next decisional sentence in the order, entered by the majority composed of Judges Bazelon, Fahy, Washington, Wright and McGowan, is the occasion for this dissent. It reads as follows:
“The death sentences are set aside with directions that each appellant be resentenced to life imprisonment on the verdicts of guilty of first degree murder.”
As far as I know, there is no justification in statute or ease law for such action; and the crime which the appellants in effect admit they committed15 was so unspeakably horrible that commutation of the death sentences would not be warranted even if this court had the pardoning power which it is exercising here.
The opinions of Judges Fahy, Wright and McGowan are all minority opinions; there is no majority opinion, except as to the affirmance of the convictions of first degree murder and robbery. That is to say, Judges Bazelon, Fahy, Washington, Wright and McGowan, who make up the majority which are setting aside the death sentences and remanding for resentence to life imprisonment, have not been able to agree on any one of the three opinions written in attempted justification of their action. It is interesting to note that none of the reasons given by those three opinions in support of the majority action was argued or even suggested by the appellants.
Nevertheless, I shall discuss those three opinions, beginning with those of Judges Wright and McGowan. They advance the theory that, because of the 1962 statute,16 a trial for first degree murder should proceed in two distinct stages. They say the jury should first determine guilt or innocence, on the evidence adduced; then, if guilt be determined, a second stage should be held at which the defendant will be allowed to show facts in mitigation for the jury’s consideration in fixing the penalty.
Although there is no such provision in the statute, my colleagues and the minorities who join them would legislate to that effect. Moreover, they would make their novel theory retroactive by applying it in these cases, thus partially nullifying the jury’s verdict because a two-stage trial — which was not then or now required — was not held. Having reached this conclusion, I am sure my colleagues were in a quandry as to what to do in these cases, for the jury had long since been discharged and there was no possibility of a remand for the second stage hearing. They might have analogized these cases to those tried prior to the effective date of the 1962 Act for which that statute makes special provision;17 *108that would have involved only slight additional judicial legislation. Instead, they chose to assume that a second stage, had it been held, would have revealed mitigating facts justifying a penalty of life imprisonment. One who has read the transcript of evidence in these cases, which I have summarized above, would have great difficulty in envisaging any mitigating facts which could have been presented.
After stating his personal preference for the two-step trial of first degree cases, Judge McGowan frankly says:
“The problem for me, therefore, is not one of the merits of the two-step procedure, but whether it may appropriately be adhered to by this oourt in the absence of explicit legislative provision for it. * * * ” (Emphasis added.)
Judge McGowan believes, however,
“ * * * that, although Congress did not provide in terms for the two-step procedure in 22 D.C.Code § 2404, neither can it be said to have set its face against the employment of that procedure in implementation of this statute.”
Thus he admits there is no legislative authority for requiring the two-stage trial of a first degree case, and says he is “implementing” the statute in adding to its terms a new provision. The Congress which enacted § 22-2404, D.C.Code, knew perfectly well how to provide for a two-stage trial, as will be seen from the portion of that statute reproduced in footnote 17. The fact that it did not do so indicates to me that it had “set its face against the employment of that procedure.”
The provisions of the Federal Rules of Criminal Procedure having to do with 'presentence investigation (Rule 32(c) (1) and (2)) cannot be used in support of the two-stage murder trial, as one of the opinions attempts to do, because the presentence report is not mandatory. Rule 32(c) (1) provides that
“ * * * The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. * * * ” (Emphasis added.)
The authorities are unanimous in holding that the presentence investigation is not mandatorily required. See, for example, the following cases: United States v. Karavias, 170 F.2d 968 (7th Cir. 1948); United States v. Schwenke, 221 F.2d 356 (2nd Cir. 1955); United States v. Williams, 254 F.2d 253 (3rd Cir. 1958); United States v. Visconti, 261 F.2d 215 (2nd Cir. 1958), cert. denied 359 U.S. 954, 79 S.Ct. 743, 3 L.Ed.2d 762 (1959); Roddy v. United States, 296 F.2d 9 (10th Cir. 1961).
I shall not further discuss the theory that a two-stage trial in a first degree murder case should be required for the reason that Judge Burger has ably and adequately dealt with the subject in his separate opinion, with which I fully concur.
Judge Fahy’s minority opinion advances two other reasons to justify the majority’s unusual action in these eases: (a) that there was error in the instruction as to penalty; and (b) that the poll of the jury did not show unanimity as to punishment. Despite the fact that neither of these propositions was accepted by a majority of the court, I think it proper to discuss them.
As to alleged error in the instructions as to penalty, little need be said. The instructions as a whole clearly and correctly told the jury how the problem of punishment should be handled by it, and it is difficult to suppose that any juror could have had the slightest doubt that, if he wanted to, he could cause disagreement as to punishment which must be *109reported to the court. It is, of course, elementary that a court’s instructions are to be considered as a whole, and that no portion should be singled out and condemned as erroneous when the whole charge is clearly correct.
I turn next to the theory that in the poll of the jury it was error not to ask each juror if he agreed to the death penalty. The theory assumes that some juror may have supposed that the question asked in the polling process was only as to whether he agreed to the verdict of guilty of first degree murder, without -reference to the punishment therefor; that he may not have understood that he was also being asked whether he agreed to the imposition of the death penalty.
I do not believe the jurors could have failed to understand the carefully phrased language of the judge’s charge concerning the punishment for first degree murder, the jury’s duty and responsibility with respect thereto, and the meaning of an unqualified verdict of guilty. I quote from the charge:
“Now, as to punishment: In the event that you find the defendants guilty of first-degree murder either under Count 1 or Count 2, it then becomes your duty to deliberate on the punishment which will be imposed. The Statute in the District of Columbia regarding punishment for first-degree murder reads as follows:
“ ‘The punishment of murder in the first degree shall be death by electrocution unless the jury by unanimous vote recommends life imprisonment, or, if the jury is unable to agree as to the punishment, it shall inform the Court and the Court shall thereupon have jurisdiction to impose and shall impose either a sentence of death by electrocution or life imprisonment.’
“Under this law, if you return a verdict of guilty of murder in the first degree and do not add any recommendation to your verdict or do not say that you are unable to agree on the penalty, the defendants’ sentences must be death.
“Similarly, if by a unanimous vote you recommend a sentence of life imprisonment, this-will be the sentence the defendants would receive. If you are unable to unanimously agree on recommending life imprisonment, then you must so inform the Court. It would then become the duty of the Court to impose sentence, either death or life imprisonment.
“It is your duty to return a verdict in this case, and I charge you that you should deliberate fully and completely in regard to the punishment. You must each reach an individual decision in this regard. This decision includes the alternatives, death by electrocution or life imprisonment.
“This is the law but as the law also requires that your verdict be unanimous, it further provides that when unanimity cannot be reached as to punishment, that is when all your individual views add up to less than a unanimous decision, then only in such event, the duty of fixing sentence falls upon the Court.
“In summary, if you find the defendants guilty of first degree murder in either the first or second count, you may return a verdict of guilty as charged which will require the imposition of the death penalty or guilty as charged with recommendation of life imprisonment; and if you are unable to agree or reach a unanimous decision as to either of these, it will then be your duty to inform the Court.”
In addition to this, the judge handed to each juror a document containing with respect to each count a description of the possible verdicts, with explanatory notes. As to the first count of first degree murder (that under which the appellants *110were found guilty), the document read as follows:
“First Count Verdict......
“First Degree Murder ..............
(Possible Verdicts:
1. Not Guilty.
2. Guilty as charged of First Degree Murder.
3. Guilty as charged of First Degree Murder with recommendation of Life Imprisonment.
4. Guilty as charged of First Degree Murder with the jury unable to agree as to punishment.
5. Guilty of Murder in the 2nd Degree.
6. Guilty of Manslaughter.
(Note : If the Jury returns a verdict of Guilty as charged of First Degree Murder (being No. 2), and makes no recommendation as to Life Imprisonment and does not state that the Jury is unable to agree as to punishment, the Court must, under the Law, sentence the defendant to death by electrocution.
“If the Jury returns a verdict of Guilty as charged of First Degree Murder with recommendation of Life Imprisonment (being No. 3), the Court must sentence the defendant to Life Imprisonment.
“If the Jury returns a verdict of guilty as charged of First Degree Murder with the Jury unable to agree as to punishment (being No. 4), the Court will thereupon have the duty to fix the penalty and will impose either a sentence of death by electrocution or a sentence of life imprisonment at the discretion of the Court.” (The emphasis in this Note is that of the trial judge.)
The judge further explained the form by saying:
“If, however, the jury has found the defendant not guilty under the second count [felony murder], they will then consider all possible verdicts under the first [premeditated first degree murder], being any one of numbers 1 through 6; * * * “And then below are further instructions, as I have previously given, about the penalties, so they will be perfectly clear to you.”
Then the judge added this significant comment:
“Now, the members of the jury who are not the foreman or the forewoman may make a note on their copies of these so that if you should be polled after your verdict is in by either side, you will have a ready reference to what your verdict is.”
The foreman wrote into the blank after the word “verdict” on' the first count form the words “Guilty as charged of First Degree Murder” and signed the document. When the jury was polled, each juror was asked, “What say you as to the defendant on Count 1?” and each answered in the exact language of the verdict signed by the foremen, “Guilty as charged of first degree murder.” It will be observed that this was the second of the six possible verdicts shown on the form furnished to each individual juror
Thus, each juror expressly rejected during the polling process possible verdicts Nos. 3 and 4 which read respectively, “Guilty as charged of First Degree Murder with recommendation of Life Imprisonment” and “Guilty as charged of First Degree Murder with the jury unable to agree as to punishment.”
All this demonstrates beyond peradventure, I think, that each juror consciously and intelligently stated that he agreed to the verdicts which found the defendants guilty and imposed the death penalty. I see no reason whatever for asking them any other questions, when the judge had so carefully explained to them that the verdicts which they finally chose to find would mandatorily require him to sentence the defendants to death by electrocution.
The strained and ineffectual attempts of three judges to justify the extraordinary action of the majority in these cases leads me to conclude that the real reason for it is an ingrained personal antipathy to capital punishment on the part of the *111judges who constitute the majority, even though they may not be aware of that motivation. I do not mean to impugn the good faith of my colleagues. I simply say that, in their zeal to save these merciless mercenary murderers from the doom pronounced by the jury, they have deluded themselves into actually thinking there is validity in the unsound doctrines they announce.
This reaction to the death penalty on the part of an appellate court is not unusual, says John D. Pomfret in an article entitled “Law: Death Penalty” in The New York Times of February 28, 1965, which included the following:
“ * * * Society has a bad conscience about putting criminals to death, and appellate courts sometimes set tortured precedents in contriving ways to set aside death sentences which seem to them shocking or unfair.”
It seems to me that Mr. Pomfret’s observation showed prescience of the majority’s action here.
Some of us who are dissenting share with the majority the view that capital punishment should be abolished. But we must all realize that it is our judicial duty to uphold the law as it is written, regardless of our personal dislike or disapproval of it. Quite recently, the Congress refused to abolish capital punishment in the District of Columbia, although it had been importuned to do so by many persons and organizations. Instead, Congress provided in the 1962 Act that in this jurisdiction death shall be the punishment for murder in the first degree — which includes premeditated murder — unless the jury unanimously recommends life imprisonment or reports it is unable to agree as to the penalty. In these cases, as I have said, the jury made no such recommendation and did not report disagreement as to the punishment ; hence the sentences pronounced by the District Court were required by the statute.
The court cannot set aside the verdict of the jury unless the evidence was insufficient to sustain it or unless prejudicial error occurred during the progress of the trial. From what has been said, it is apparent that the evidence amply supported the verdict; and there is no prejudicial error in the record. The able District Judge conducted the trial in exemplary fashion, and charged the jury in a manner which was beyond criticism. The appellants had no real defense and there is no real reason shown on appeal why they should not pay that penalty for their atrocious crime which the law provides and the jury imposed.
. The indictment under -which appellants, were tried was in three counts. It charged felony murder, robbery, and pre- r meditated murder. Appellants were ac-emitted of felony murder.
. Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U.Pa.L.Rev. 759 (1949); Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Colum.L.Rev. 701, 703-704 (1937).
. Tyson, Essay on the Penal Law of Pennsylvania 18 (1827).
Journal of the Senate 242 (Pa. 1794), quoted in Keedy, op.cit. supra Note 2 at 772 — 773
. Md.Code Ann. Art. 27, § 407 (1957); Va.Code § 18.1-21 (Supp.
. 22 D.C.Code § 2401 (1961).
. See Keedy, op.cit. supra Note 2 at 771.
. See Comment, 19 So.Cal.L.Rev. 417 (1946). Many jurisdictions expressly include an element of “cool state of blood” or calmness in the concept of deliberation. People v. Thomas, 25 Cal.2d 880, 156 P.2d 7, 17 (1945) (“determined upon as a result of careful thought * * * carried on coolly and steadily * * *”); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 772, 96 A.L.R.2d 1422 (1961); State v. Cade, 326 Mo. 1132, 34 S.W.2d 82, 83 (1930); Hamblin v. State, 81 Neb. 148, 115 N.W. 850, 854 (1908).
. As to the element of time, this court held in Bullock v. United States, 74 App.D.C. 220, 220-221, 122 F.2d 213, 213-214 (1941):
“ * * * To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. * * * ”
Prior to Bullock, a dictum in Bostic v. United States, 68 App.D.C. 167, 170, 94 F.2d 636, 639 (1937), cert. denied, 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095 (1938), had said that “this does not require the lapse of days or hours, or even minutes.” However, the phrase “or even minutes” cannot be taken as part of the holding in Bostio, for the facts in that case involved a deliberation of at least several minutes. Ibid. While it is true that the necessary deliberation requires no specific lapse of time, it is difficult to ■ imagine how sufficient deliberation could be present without the lapse of “even minutes.” See Tucker v. United States, 115 U.S.App.D.C. 250, 318 F.2d 221 (1963).
. Wechsler & Michael, op.cit. supra Note 2 at 707-709. See Cardozo, What Medicine Can Do For Law (1928), in Hall, Selected Writings oe Benjamin Nathan Cardozo 383-384 (1947).
. The appellants were apprehended within minutes after the killing. The Government’s witness, Mrs. Elizabeth Ryder, testified that the following remarks were made while the appellants were in the patrol wagon on the way to the police station;
“Richard [Gordon] said, ‘He looks like he’s pretty messed up,’ and Frady said, ‘He looks like he’s dead.’ ”
. The jury convicted appellants of robbery. See Note 1 supra.
. An intent to inflict serious injury, unaccompanied by premeditation, is sufficient for second degree murder, but first degree murder requires, in addition to premeditation, the specific intent to kill, that is, to take life. Sabens v. United States, 40 App.D.C. 440 (1913). Cf. Hansborough v. United States, 113 U.S. App.D.C. 392, 308 F.2d 645 (1962).
. Anzoategui v. United States, 118 U.S. App.D.C. 337, 335 F.2d 1000 (1964). See generally, 1 Wharton, Criminal Evidence § 11 (12th ed. 1955).
. Scott v. United States, 98 U.S.App.D.C. 105, 107, 232 F.2d 362, 364 (1956).
. Scott v. United States, supra Note 15; Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954); Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).
This is a higher standard than the “substantial evidence” test applied in civil cases. See Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1152-1163 (1960).
. It is suggested that evidence in mitigation could have been offered during the trial. However, if such evidence were admitted, the Government could then introduce evidence in aggravation which would be highly prejudicial to the appellants on the question of guilt or innocence. Thus the appellants would have to choose between risking serious prejudice to their cause on the question of guilt and not offering any evidence in mitigation for the jury to consider before passing on the sentence. The presence of this dilemma virtually eliminates the appellants’ opportunity to offer such evidence.
. Rule 32(c) (2), Fed. R. Crim. P.
. Ball v. United States, 140 U.S. 118, 129, 11 S.Ct. 761, 35 L.Ed. 377 (1891). See also Coleman v. United States, 118 U.S. App.D.C. 168, 176-179, 334 F.2d 558, 566-569 (1964) (en banc) (concurring opinion of Judges Burger and McGowan).
. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Couch v. United States, 98 U.S.App.D.C. 292, 295-296, 235 F.2d 519, 522-523 (1956) (en banc) (concurring opinion of Judge Fahy).
. Williams v. People of State of New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).
. It is, of course, a well established rule of statutory construction that a statute must be interpreted “with an eye to possible constitutional limitations so as to avoid doubts as to its validity.” Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 73 L.Ed. 851 (1929); United States v. Rumely, 345 U.S. 41, 45-47, 73 S.Ct. 543, 97 L.Ed. 770 (1953).
. See Note, 39 N. Y. U. L. Rev. 50 (1964).
. This policy is seen in the part of 22 D.C.Code § 2404 dealing with capital cases pending at the time of its enactment, Coleman v. United States, supra Note 19, and also in the procedures provided by 18 U.S.C. § 4208(b). See United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963).
. The first two counts were based on § 22-2401, D.C.Code (1961), which follows:
“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, rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.”
The third count was based on § 22-2901, D.C.Code (1961), which reads;
“Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than six months nor more than fifteen years.”
. Section 22-2404, D.C.Code (Supp. IV, 1965), 76 Stat. 46, March 22, 1962, which is in pertinent part as follows:
“The punishment of murder in the first degree shall be death by electrocution unless the jury by unanimous vote recommends life imprisonment; or if the jury, having determined by unanimous vote the guilt of the defendant as charged, is unable to agree as to punishment it shall inform the court and the court shall thereupon have jurisdiction to impose and shall impose either a sentence of death by electrocution or life imprisonment.
v # ¥ * *
“In any case tried under this Act as amended where the penalty prescribed by law upon conviction of the defendant is death except in cases otherwise provided, the jury returning a verdict of guilty may by unanimous vote fix the punishment at life imprisonment; and thereupon the court shall sentence him accordingly; but if the jury shall not thus prescribe the punishment the court shall sentence the defendant to suffer death by electrocution unless the jury by its verdict indicates that it is unable to agree upon the punishment, in which case the court shall sentence the defendant to death or life imprisonment.”
. Significantly, the murder weapon bore no fingerprints.
. It is noteworthy that the defense of insanity was not interposed or even suggested by the appellants at the trial. Although it was not asked by the appellants to do so, the District Court ordered on May 3, 1963, that they be examined by the psychiatric staff of the Legal Psychiatric Services, and that a report be furnished upon their competency to stand trial and their mental responsibility for the crimes charged. In two letters filed on May 14, 1963, the Chief of the Legal Psychiatric Services informed the court that he had attempted psychiatric examinations of the appellants in the cell block of the United States Courthouse on May 13, 1963. Both appellants had refused to be examined.
Upon motion of the Government filed June 3, 1963, both appellants were committed to Saint Elizabeths Hospital for a period not to exceed 90 days. On August 22,1963, the Superintendent of Saint Elizabeths reported that appellant Frady was competent to stand trial and that he suffered from no mental disease or defect either at that time or on or about March 13, 1963. A similar report concerning appellant Gordon was filed August 26, 1963. These findings were not challenged, and it is not argued here that the appellants should have been found not guilty by reason of insanity.
. 122 F.2d 461, 466 (1941), cert. denied 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1942).
. 68 App.D.C. 167, 94 F.2d 636 (1937), cert. denied 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095 (1938).
. Bullock v. United States, 74 App.D.C. 220, 122 F.2d 213 (1941).
. The home of Thomas Bennett, 1109 Savannah Street, was “just around the corner” from their parking spot on 11th Place.
. Cf. footnote 3, page 101, supra.
. What is known as tile federal or American rule, which restricts cross-examination to matters within the scope of the direct examination, prevails in this jurisdiction. In Radio Cab v. Houser, 76 U.S.App.D.C. 35, 128 F.2d 604 (1942), our then Chief Justice, D. Lawrence Groner, noted the general rule that a party has no right to cross-examine a witness as to facts and circumstances disconnected with the matters stated in his direct examination. See also Dixon v. United States, 112 U.S.App.D.C. 366, 303 F.2d 226 (1962).
If the cross-examination goes into matters entirely beyond the scope of the direct examination, the cross-examiner makes the witness his own witness as to such matters and the evidence so elicited should be considered as the affirmative evidence of the cross-examiner.
. 164 U.S. 546, 556, 17 S.Ct. 172, 174, 41 L.Ed. 547 (1896).
. 102 U.S.App.D.C. 227, 252 F.2d 608 (1957).
. 115 U.S.App.D.C. 1, 3, 316 F.2d 652, 654 (1963).
. Carey v. United States, 111 U.S.App.D.C. 300, 304, 296 F.2d 422, 426 (1961). The trial judge’s charge correctly made it clear, however, that the count charging murder during the perpetration of robbery could not be sustained unless Bennett was alive when his wallet was taken. Doubtless the jury found the appellants not guilty under that count because the evidence did not show whether the robbery took place before or after death.
. The appellants say in their brief, “The fact that the defendants were in a fight with the deceased, shortly before the death of the deceased, is not seriously disputed.” They also state that “The killing itself was particularly violent $ * *
. See footnote 2.
. Section 22-2404, D.C.Code (Supp. IV 1965), includes the following:
“Cases tried prior to March 22. 1962, and which are before the court for the purpose of sentence or resentence shall be governed by the provisions of law in effect prior to March 22, 1962: Provided, That the judge may, in his sole discretion, consider circumstances *108in mitigation and in aggravation and make a determination as to whether the case in his opinion justifies a sentence of life imprisonment, in which event he shall sentence the defendant to life imprisonment. Such a sentence of life imprisonment shall be in accordance with the provisions of this Act."