Logan v. United States

NEBEKER, Associate Judge,

dissenting:

Common sense and principles of statutory construction compel me to conclude that appellant’s “transfer” was not erroneous. Our concern is to determine whether, given the generic statutory language (“murder”), Congress intended to include assault with intent to kill within the purview of D.C. Code § 16-2301 (1981). I conclude that Congress so intended. An examination of the statutory definitions of the offenses included within § 16-2301 lends support to such a construction. Furthermore, our contrary holding creates an imbalance in the juvenile waiver system where less serious purposeful assaults do not require judicial judgment as a condition to waiver of juvenile process.

Congress’s intent in passing § 16-2301 was to facilitate the transfer of sixteen and seventeen year-old juveniles charged with the most serious felonies. In re C.S., 384 A.2d 407, 410-11 (D.C.1977).1 Among these crimes is murder; also included are assaults with intent to commit any of the four crimes enumerated in that section. Read literally, then, § 16-2301 authorizes the transfer of these juveniles by an indictment for an assault with intent to murder.

One needs only to look to the original enactment defining the proscribed “Offenses Against the Person,” at 31 Stat. 1321 (1901), to determine that assault with intent to kill is the statutory equivalent of assault with intent to murder. A common thread runs through Congress’s statutory definitions of “Murder in First Degree” (Sec. 798) and “Murder in Second Degree” (Sec. 800). Whatever distinctions exist between the degrees of murder as defined by the statute, to be guilty of murder, the one charged must be one who “kills another.” Thus, the common element in murder — no matter how refined by statute or common law — is the killing of a human.

In the very same subchapter that defines murder, at Sec. 803, Congress proscribed “Assault with Intent to Kill, and So Forth.” Having just defined murder as to kill with purpose or malice, that is, to kill with intent, Congress proscribed unconsummated murder as assault “with intent to kill.” Assault with intent to kill, then, is simply an incomplete murder without regard to the refinements of deliberation, malice, or other elements constituting murder in its differing degrees.

The majority effectively removes from the reach of § 16-2301 all juveniles who, though intending to do so, did not kill their victim — but leaves subject to waiver by indictment all those juveniles charged with assault with intent to rape, or to commit burglary (first degree), or armed robbery, all offenses equal to or less severe than assault with intent to kill (murder). This is *678not an appropriate result to achieve through lenity or strict construction, as professed by the majority.

I conclude that there is no defect in the waiver by indictment in this ease. Pendergrast v. United States, 332 A.2d 919, 922 (D.C.1975). Accordingly, I would affirm.

. Congress stressed that:

Because of the great increase in the number of serious felonies committed by juveniles and because of the substantial difficulties in transferring juvenile offenders charged with serious felonies to the jurisdiction of the adult court under present law, provisions are made in this subchapter for a better mechanism for separation of the violent youthful offender and the recidivist from the rest of the juvenile community.

H.R.Rep. No. 907, 91st Cong., 2d Sess. 50 (1970).