B-134593, FEB. 21, 1958

B-134593: Feb 21, 1958

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IN WHICH LETTER YOU REQUEST DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON VOUCHERS IN FAVOR OF MRS. THERE WERE SUBMITTED WITH YOUR LETTER PHOTOSTATIC COPIES OF THE TRANSCRIPT OF THE TESTIMONY GIVEN AT A HEARING ON JULY 31. THERE WERE ALSO ENCLOSED PHOTOSTATIC COPIES OF A STATEMENT GIVEN BY HER TO POLICE OFFICERS OF CHATHAM COUNTY. IS TO THE EFFECT THAT SHE AND THE OFFICER WERE MARRIED IN DECEMBER 1945 AND HAVE FOUR CHILDREN AGES 3. SHE TESTIFIED THAT SHE HONESTLY BELIEVES THAT IF SHE HAD NOT SHOT HER HUSBAND WHEN SHE DID HE WOULD HAVE KILLED HER THAT NIGHT. DORSEY AFTER THE SHOOTING WAS CORROBORATED BY THE REPORTER WHO TOOK HER STATEMENT AND BY THE MATRON AT THE CHATHAM COUNTY.

B-134593, FEB. 21, 1958

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF, DISBURSING OFFICER:

BY LETTER DATED DECEMBER 3, 1957, THE DEPARTMENT OF THE AIR FORCE, FORWARDED YOUR UNDATED LETTER AND ENCLOSURES, IN WHICH LETTER YOU REQUEST DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON VOUCHERS IN FAVOR OF MRS. HALEEN DORSEY, FOR THE SIX MONTHS' DEATH GRATUITY AND ARREARS OF PAY DUE IN THE CASE OF HER LATE HUSBAND, CAPTAIN BENJAMIN A. DORSEY, USAF, AO 207 3942.

THE OFFICER DIED JULY 25, 1957, FROM A GUNSHOT WOUND INFLICTED BY HIS WIFE AT THEIR HOME IN CHATHAM COUNTY, GEORGIA, THE OFFICER BEING STATIONED AT HUNTER AIR FORCE BASE IN THAT COUNTY AND STATE.

THERE WERE SUBMITTED WITH YOUR LETTER PHOTOSTATIC COPIES OF THE TRANSCRIPT OF THE TESTIMONY GIVEN AT A HEARING ON JULY 31, 1957, IN THE RECORDER'S COURT OF CHATHAM COUNTY, GEORGIA, ON A CHARGE OF MURDER AGAINST THE WIDOW OF THE OFFICER. THERE WERE ALSO ENCLOSED PHOTOSTATIC COPIES OF A STATEMENT GIVEN BY HER TO POLICE OFFICERS OF CHATHAM COUNTY, GEORGIA, AT 12:30 A.M. ON JULY 26, 1957.

THE TESTIMONY OF MRS. DORSEY AT THE HEARING AND AT THE POLICE INVESTIGATION ON JULY 26, 1957, IS TO THE EFFECT THAT SHE AND THE OFFICER WERE MARRIED IN DECEMBER 1945 AND HAVE FOUR CHILDREN AGES 3, 4, 9 AND 10 YEARS. APPROXIMATELY 21 MONTHS AFTER THEIR MARRIAGE THE OFFICER BEGAN TO ABUSE HER, WHICH ABUSE OF HER AND THE CHILDREN CONTINUED INTERMITTENTLY, AT TIMES WITH GREAT PHYSICAL VIOLENCE, UP TO THE DAY OF THE SHOOTING.

MRS. DORSEY FURTHER RELATED THAT ON JULY 25, 1957, THE OFFICER CAME HOME AT ABOUT 5:20 P.M. AND ASKED HER FOR BEER AND WHISKEY, GETTING "QUITE DRUNK" IN ABOUT AN HOUR. HE BEGAN CALLING HER NAMES, MOCKING HER AND MAKING FUN OF HER. HE KICKED HER IN HER RIBS, FACE, BACK AND HEAD. BEGAN TALKING ABOUT THE HORRIBLE WAYS A PILOT COULD DIE (HE BEING A PILOT), INCLUDING BURNING TO DEATH, AND FORCED HER TO HOLD HER FINGER IN A LIGHTED CANDLE, TELLING HER THAT IF SHE REFUSED HE WOULD KILL HER. AFTER MORE NAME-CALLING BY HIM, HE BEGAN STRIKING HER AGAIN. HE SETTLED DOWN AND THEY WENT TO THEIR BEDROOM TO RETIRE, BUT AS SOON AS THEY "REACHED THE BEDROOM HE BECAME VERY ANGRY AGAIN.' HE SLAPPED HER SOME MORE, ASKED A QUESTION, WHICH SHE COULD NOT REMEMBER, AND HE THEN WENT INTO THE BATHROOM. HE CALLED OUT THAT SHE HAD NOT ANSWERED HIS QUESTION AND STARTED BACK TOWARDS HER. HE HAD LEFT HER STANDING BY A NIGHTSTAND, WHERE THEY KEPT A LOADED GUN. SHE PICKED UP THE GUN AND FIRED THREE SHOTS AT HIM. SHE THEN CLIMBED OUT OF THE BEDROOM WINDOW AND WENT TO SEE THE NEXT DOOR NEIGHBOR AND REPORTED THE SHOOTING. SHE TESTIFIED THAT SHE HONESTLY BELIEVES THAT IF SHE HAD NOT SHOT HER HUSBAND WHEN SHE DID HE WOULD HAVE KILLED HER THAT NIGHT.

ONE OF THE POLICE OFFICERS, WHO ARRIVED AT THE SCENE SHORTLY AFTER THE SHOOTING HAD BEEN REPORTED ABOUT 8:40 P.M., TESTIFIED AS TO THE BRUISES ON MRS. DORSEY, INDICATING THAT SHE HAD BEEN BEATEN SEVERELY. HE ALSO TESTIFIED, AS DID THE CHATHAM COUNTY, GEORGIA, CORONER, THAT THE OFFICER HAD BADLY BRUISED KNUCKLES AND BRUISES ON HIS TOES. THE TESTIMONY AS TO THE PHYSICAL CONDITION OF MRS. DORSEY AFTER THE SHOOTING WAS CORROBORATED BY THE REPORTER WHO TOOK HER STATEMENT AND BY THE MATRON AT THE CHATHAM COUNTY, GEORGIA, JAIL. THEY ALSO TESTIFIED THAT THE WIDOW APPEARED TO BE SOBER AND SHOWED NO SIGNS OF DRINKING.

AT THE CONCLUSION OF THE HEARING THE RECORDER DISMISSED THE CHARGE, SAYING: "IT'S A VERY UNFORTUNATE TRAGEDY. I FEEL THAT IT WAS JUSTIFIABLE. * * * DISMISSED.' THE ACTION OF THE RECORDER PRESUMABLY WAS BASED UPON THE PROVISIONS OF SECTIONS 26-1011 AND 26-1012 OF THE GEORGIA CODE, ANNOTATED. SECTION 26-1011 DEFINES "JUSTIFIABLE HOMICIDE" AS INCLUDING THE KILLING OF A HUMAN BEING "IN SELF-DEFENSE, OR IN DEFENSE OF HABITATION, PROPERTY OR PERSON, AGAINST ONE WHO MANIFESTLY INTENDS OR ENDEAVORS BY VIOLENCE OR SURPRISE TO COMMIT A FELONY ON EITHER * * *.' SECTION 26-1012 PROVIDES THAT A BARE FEAR, TO PREVENT WHICH THE HOMICIDE IS ALLEGED TO HAVE BEEN COMMITTED, SHALL NOT BE SUFFICIENT TO JUSTIFY THE KILLING, BUT THAT IT MUST APPEAR THAT THE CIRCUMSTANCES WERE SUFFICIENT TO EXCITE THE FEARS OF A REASONABLE MAN, AND THAT THE PARTY KILLING REALLY ACTED UNDER THE INFLUENCE OF THOSE FEARS, AND NOT IN A SPIRIT OF REVENGE.

WE HAVE NOW RECEIVED FROM THE DEPARTMENT OF THE AIR FORCE, A COPY OF AF FORM 348 (LINE OF DUTY DETERMINATION) FROM WHICH IT APPEARS THAT THE OFFICER'S COMMANDING OFFICER DETERMINED, AS A RESULT OF HIS INVESTIGATION, THAT THE SHOOTING WAS IN SELF-DEFENSE. WE HAVE ALSO BEEN INFORMALLY ADVISED THAT THE VETERANS ADMINISTRATION HAS GRANTED A LUMP-SUM PAYMENT IN THE AMOUNT OF $10,000 TO THE WIDOW AS THE PRINCIPAL BENEFICIARY OF THE DECEDENT'S INSURANCE. THE AWARD WAS BASED UPON A DETERMINATION THAT THE WIDOW DID NOT WRONGFULLY AND INTENTIONALLY CAUSE THE DEATH OF THE DECEDENT AND DID NOT FORFEIT RIGHTS TO INSURANCE PAYABLE AS A RESULT OF THE DECEDENT'S DEATH.

IN 34 COMP. GEN. 103, WE HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION, OR OTHER BENEFITS TO A BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENT BECOMES DUE, EVEN THOUGH SUCH HEIR OR BENEFICIARY MAY BE FOUND NOT GUILTY BY A TRIAL JURY IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE, CITING UNITED STATES V. KWASNIEWSKI, 91 F.SUPP. 847. WE POINTED OUT THAT IN LINE WITH THE GENERAL PRINCIPLE OF LAW THAT A PERSON MAY NOT PROFIT BY HIS WRONGFUL ACTS, THE COURTS HAVE CONSISTENTLY HELD THAT WHERE A BENEFICIARY OF LIFE INSURANCE INTENTIONALLY OR FELONIOUSLY CAUSES THE DEATH OF THE INSURED THERE CAN BE NO RECOVERY ON THE POLICY BY SUCH BENEFICIARY, CITING SWAVELY V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, 157 A. 394, AND CASES AND AUTHORITIES THERE CITED. WE ALSO QUOTED, IN PART, THE LANGUAGE OF THE UNITED STATES SUPREME COURT IN NEW YORK MUTUAL LIFE INSURANCE COMPANY V. ARMSTRONG, ADMINISTRATRIX, 117 U.S. 591.

IN UNITED STATES V. BURNS, 103 F.SUPP. 690, THERE WAS INVOLVED AN ACTION BY THE UNITED STATES TO DETERMINE THE RIGHTS OF THE PRINCIPAL AND CONTINGENT BENEFICIARIES TO THE PROCEEDS OF A NATIONAL SERVICE LIFE INSURANCE POLICY, IT APPEARING THAT THE INSURED DIED AS THE RESULT OF A GUNSHOT WOUND INFLICTED BY THE PRINCIPAL BENEFICIARY AND WIFE OF THE INSURED. ON HER TRIAL FOR THE MURDER OF HER HUSBAND THE JURY FOUND HER NOT GUILTY. THE COURT ADOPTED AND FOLLOWED THE GENERAL RULE THAT ACQUITTAL ON A CRIMINAL CHARGE IS NOT RES JUDICATA IN A SUBSEQUENT CIVIL ACTION. REGARDING THE QUESTION WHETHER THE WIFE WAS ENTITLED TO THE INSURANCE SINCE SHE CAUSED THE DEATH OF HER HUSBAND, THE COURT EXPRESSED THE OPINION THAT IT WAS CONVINCED FROM AN EXAMINATION OF THE UNDISPUTED FACTS, AS DISCLOSED BY THE RECORD IN THE CRIMINAL CASE, THAT THE WIFE WAS NOT ENTITLED TO THE INSURANCE. IN REACHING SUCH CONCLUSION THE COURT QUOTED WITH APPROVAL FROM METROPOLITAN LIFE INSURANCE CO. V. MCDAVID, 39 F.SUPP. 228, PART, AS FOLLOWS:

"IT IS NECESSARY TO KEEP IN MIND THAT RUNNING THROUGH THE ADJUDICATED CASES THE REAL REASON FOR NOT PERMITTING RECOVERY IS THAT THE BENEFICIARY INTENTIONALLY TOOK THE LIFE OF THE INSURED AND THAT THE INTENTIONAL ACT SHOULD NOT PLACE THE BENEFICIARY IN POSITION TO ENJOY A BENEFIT WHICH WOULD NOT HAVE BEEN ENJOYED AND COULD NOT HAVE BEEN ENJOYED EXCEPT FOR THE WICKED INTENTIONAL KILLING. * * *"

THE JUDGMENT IN THE BURNS CASE WAS AFFIRMED BY THE UNITED STATES FOURTH CIRCUIT COURT OF APPEALS (200 F.2D 106), THE APPELLATE COURT STATING---

"* * * THE JUDGE BELOW PROPERLY HELD THAT THE ACTION OF THE STATE COURT IN THE CRIMINAL CASE WAS NOT BINDING IN THIS CASE AND HELD UPON THE EVIDENCE SUBMITTED TO HIM THAT THE KILLING WAS NOT JUSTIFIED ON THE THEORY OF SELF-DEFENSE BUT THAT THE WIDOW WAS GUILTY OF THE INTENTIONAL AND FELONIOUS SLAYING OF THE INSURED. WE THINK THAT THIS WAS CLEARLY RIGHT.

THUS, IT IS INDICATED THAT HAD THE KILLING IN THE BURNS CASE BEEN IN SELF -DEFENSE, THE JUDGMENT WOULD HAVE BEEN OTHERWISE. AND SEE ALSO, TAYLOR V. UNITED STATES, 113 F.SUPP. 143, 152, WHERE THE FOLLOWING LANGUAGE APPEARS:

"IF A BENEFICIARY INTENTIONALLY AND FELONIOUSLY KILLS THE INSURED, HE OR SHE IS BARRED FROM CLAIMING INSURANCE PROCEEDS ON THE LIFE OF THE INSURED. AUSTIN V. UNITED STATES, 7 CIR., 125 F.2D 816; UNITED STATES V. BURNS, D.C.MD., 103 F.SUPP. 690, AFFIRMED 4 CIR., 220 F.2D 106; UNITED STATES V. KWASNIEWSKI, D.C.MICH., 91 F.SUPP. 847. AND AN ACQUITTAL ON A CRIMINAL CHARGE IS NOT RES JUDICATA IN A SUBSEQUENT CIVIL ACTION UPON THE POLICY. UNITED STATES V. BURNS, SUPRA; UNITED STATES V. KWASNIEWSKI, SUPRA; HORN V. COLE, ADMINISTRATOR, 203 ARK. 361, 156 S.W.2D 787. THUS, THE FACT THAT THE PLAINTIFF HEREIN WAS ACQUITTED OF THE CRIMINAL CHARGE PROSECUTED AGAINST HER IN THE STATE COURT IS NOT BINDING ON THIS COURT, BUT THE COURT IS CONVINCED FROM THE TESTIMONY THAT IN SHOOTING HER HUSBAND THE PLAINTIFF WAS ACTING IN NECESSARY SELF DEFENSE AND SHOULD NOT BE DENIED RECOVERY UNDER THE POLICY BY REASON OF THAT FACT.'

IN THE LIGHT OF ALL THE CIRCUMSTANCES IN THE CASE HERE INVOLVED, IT WOULD APPEAR REASONABLE TO CONCLUDE THAT THE WIDOW KILLED HER HUSBAND IN NECESSARY SELF-DEFENSE.

ACCORDINGLY, PAYMENT OF THE VOUCHERS, SUBMITTED WITH YOUR LETTER, ARE AUTHORIZED, IF OTHERWISE CORRECT.

THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE RETURNED, EXCEPT ONE COPY OF THE PHOTOSTATS OF THE TRANSCRIPT AND THE STATEMENT OF THE WIDOW WHICH ARE BEING RETAINED FOR OUR FILES.