## Facts

- Bernard Austin was indicted for murdering Nettie Scott “with premeditation, deliberation, and malice aforethought” under District of Columbia law; the indictment did not include felony murder.
- The government showed Austin and Scott were together for part of the night, drinking at an after-hours establishment where Austin was seen using a sharp pocket knife.
- Around 4:00 a.m., Austin left with Scott and another woman, went to a carry-out shop, ate in Austin’s truck, then drove the other woman home around 4:30 a.m., leaving with Scott.
- No witness described events after Austin left the other woman’s residence.
- Around 5:00 a.m., police saw Austin’s truck near a river, observed clothing on the grass, and then saw Austin come up the riverbank, enter the truck, and drive away.
- The clothing was blood-stained; Scott’s body was recovered from the river with more than 25 stab wounds, including a fatal head wound from a broken knife blade lodged in her skull.
- The government presented no evidence of prior threats, argument, or animosity between Austin and Scott before the killing.
- The trial court instructed that the time sufficient for deliberation “may be in the nature of hours, minutes, or seconds,” and rejected Austin’s requested instruction requiring an “appreciable period of time.”

## Issues

1. Whether the government’s case-in-chief contained sufficient evidence of premeditation and deliberation to submit first-degree murder to the jury.
2. Whether the jury instructions on premeditation and deliberation, including the “hours, minutes, or seconds” formulation, misstated or obscured the qualitative requirement distinguishing first- from second-degree murder.
3. What appellate remedy was appropriate if the proof established intentional homicide but not first-degree murder.

## Decision

- The court held the evidence was sufficient to permit a finding of intentional murder but insufficient to support premeditation and deliberation required for first-degree murder.
- Exercising authority under 28 U.S.C. § 2106, the court remanded for entry of judgment of conviction for second-degree murder and for resentencing.
- The court did not order a new trial unless the district court determined a new trial was required in the interest of justice.

## Legal Principles

- Under District of Columbia law, first-degree murder is reserved for killings committed with premeditation and deliberation, reflecting a “cool and deliberate” state of mind; second-degree murder includes intentional killings not shown to be deliberated.
- Premeditation and deliberation require more than intent plus an opportunity to kill; the inquiry is whether the defendant actually reflected and weighed considerations, even if the period of reflection is brief.
- Proof of multiple wounds, possession of a weapon, and opportunity may support intent, but without evidence bearing on reflection (e.g., planning, threats, or circumstances showing cool decision-making), the first-degree element may fail.
- An appellate court may modify a judgment to a lesser-included offense and remand for resentencing when the evidence supports the lesser offense but not the greater, rather than requiring a new trial.

## Conclusion

The court concluded that the record supported intentional homicide but lacked evidence that the killing resulted from actual premeditation and deliberation; it therefore reduced the conviction from first-degree to second-degree murder and remanded for entry of the modified judgment and resentencing, subject to the district court’s discretion to order a new trial in the interest of justice.


Austin v. United States, 382 F.2d 129 (D.C. Cir. 1967)