Lauren W. Dobbs, Yakima, Wash. (argued), for defendant-appellant.

Robert S. Linnell, Asst. U.S. Atty. (argued), Spokane, Wash., for plaintiff-appellee.

Before MERRILL and HUFSTEDLER, Circuit Judges, and TAYLOR,* District Judge.

Daniel Celestine, an Indian, has appealed from his conviction on one count of second degree murder within the Yakima Indian Reservation in violation of Title 18, U.S.C. § 1153.1 Following his jury trial, appellant's motions for judgment of Acquittal, Arrest of Judgment, or for a New Trial were denied by the trial court and the appellant, then eighteen years of age, was sentenced under the Federal Youth Correction Act (18 U.S.C. § 5005 et seq.) to imprisonment of not more than ten years.

The record shows that Rita Sweowaht, a 20 year old Indian girl, was with the appellant in the early morning of July 5, 1973. The two were heard arguing and approximately an hour later the appellant was seen with blood on his shirt, shoes and hands. Eleven days later, the girl was found dead in an Indian sweat house (a partially underground structure in which the Indians took sauna baths).

In a signed statement, Celestine admitted he was with the deceased on July 5 at a party; that he was intoxicated at the time; that he followed Miss Sweowaht when she left the party and that when she resisted his sexual advances, he beat her with his fists. The appellant stated that the next thing he remembered was that the girl had no clothes on and he was kicking a stick into her vagina. Celestine then went back to the party and fell asleep. On awakening, he went back to the victim and, not knowing whether she was alive or dead, dragged her to the sweat house and placed her inside. Testimony at the trial established that a stake was protruding three to four inches from the victim's vagina when she was found. Several days after the autopsy, a stake 11 1/2 inches long and one inch square was removed from the body by a funeral director.

The coroner who performed the autopsy was unsure of the cause of death at the time he examined the body. He did note that the fat around the heart was distended with gas and the heart itself was full of gas bubbles. The prosecution posed a hypothetical question to the coroner requesting his opinion as to the result of forcing a one inch square stake eight to eight and one-half inches into the vaginal tract of a 20 year old woman. Over defendant's objection, the coroner testified that the stake would have penetrated the wall of the vagina and the lower intestine behind it causing infection and allowing bacteria to enter the blood stream (septicemia). The coroner further stated that if these bacteria were gas bacilli, gas would form in the organs, resulting in the death of the victim.

The coroner did not see the stake in the body at the time he performed his autopsy. However, he did note that the intestines were collapsed, but did not observe any rupture of the intestines. The body was rather badly decomposed and maggots infested the interior thereof which obscured the coroner's view. The coroner, who did not know the body was inside a sweat house, fixed the time of death from three to five days prior to the time the body was found. He based his opinion on the deterioration of the body and maximum temperatures of over 100 degrees Fahrenheit during early July.

Appellant's initial contention is that as a matter of law the evidence was not sufficient to support a finding that Celestine caused the death of Rita Sweowaht, nor was the evidence sufficient to show that the appellant acted with malice aforethought. After carefully reviewing all the evidence produced at the trial, considered in the light most favorable to the government, together with the reasonable inferences which may be drawn therefrom, we are convinced that there was an abundance of evidence from which the jury could find that the appellant caused the death of the girl. See Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Munns, 457 F.2d 271 (9th Cir. 1972), cert. den. 409 U.S. 871, 93 S. Ct. 199, 34 L. Ed. 2d 121 (1972); Kaplan v. United States, 329 F.2d 561 (9th Cir. 1964). Furthermore, the jury could reasonably find that appellant acted with malice aforethought. Malice aforethought is the condition of a person's mind. Since no one can look into the mind of another, the only way to decide what is in his mind is to infer it from his acts and that inference is one of fact for the jury. Stevenson v. United States, 162 U.S. 313, 16 S. Ct. 839, 40 L. Ed. 980 (1896). Malice aforethought does not mean simply hatred or ill will, but also embraces the state of mind with which one intentionally commits a wrongful act without legal justification or excuse. It may be inferred from circumstances which show 'a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences.' Government of Virgin Islands v. Lake, 362 F.2d 770 (3rd Cir. 1966); United States v. Hinkle, 159 U.S.App.D.C. 334, 487 F.2d 1205 (1973). The act attributed to the appellant certainly permits, if it does not require, the conclusion that the homicide was accompanied by a callous and wanton disregard of human life.

The appellant next argues that the jury instruction given on implied malice was reversible error.2 A circumstance which a jury may properly consider in deciding whether a defendant acted with malice is whether he used a weapon or other instrument upon his victim in such a manner as may be expected naturally and probably to cause death. Government of Virgin Islands v. Lake, supra. Appellant recognizes the general rule of implied malice, but argues that the failure to use and define the term 'deadly weapon' in the instruction given and the failure to state that the deadly weapon caused the death of the deceased is reversible error. We do not agree. Considering the court's instructions, as a whole, in regard to the element of malice aforethought,3 and in light of the strong and unequivocal evidence of malice, it was not reversible error for the court to give the instruction.

Although the trial court instructed the jury on the crimes of second degree murder and voluntary manslaughter, the appellant contends the court erred in refusing to give his requested instruction on involuntary manslaughter. Rule 31(c) of the F.R.Cr.P. allows a defendant to be found guilty of an offense necessarily included in the offense charged. Manslaughter is recognized as a lesser included offense within second degree murder. Stevenson v. United States, supra; Belton v. United States, 127 U.S.App.D.C. 201, 382 F.2d 150 (1967). However, in order for a defendant to be entitled to an instruction as to a lesser included offense, there must be evidence in the record which would enable a jury to rationally find the existence of all the elements of the lesser included offense. Sansone v. United States, 380 U.S. 343, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965); United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970); Simon v. United States, 137 U.S.App.D.C. 308, 424 F.2d 796. After a thorough reading of the record, we are unable to discern any reasonable set of circumstances from which the jury could return a verdict of involuntary manslaughter.4 Even assuming, as appellant argues, that the jury might find that the girl was alive at the time Celestine placed her in the sweat house and that his only wrongful act was hiding the victim and not seeking medical aid for her, this in and of itself would constitute an act in wanton and callous disregard of human life. The element of malice would thus be present, eliminating the necessity for an involuntary manslaughter instruction.

Appellant next argues that the hypothetical question asked the coroner should not have been permitted by the trail court. The coroner, however, gave his expert opinion in regard to the cause of death based only on facts established by his own observations and the established facts in evidence. It was not error to permit the expert's opinion based on facts in evidence. United States v. Carlson, 423 F.2d 431 (9th Cir. 1970), cert. den. 400 U.S. 847, 91 S. Ct. 94, 27 L. Ed. 2d 84 (1970); Permanente Steamship Corporation v. Martinez, 369 F.2d 297 (9th Cir. 1966).

Appellant's final contention is that the trial court committed reversible error in failing to give his requested instruction on the joint operation of mens rea and actus rea. The record is devoid of any objection by the appellant in regard to the failure of the court to give this instruction and, absent plain error, he is foreclosed from raising this issue for the first time on appeal. Rule 30, 52(b) F.R.Cr.P.; United States v. Johnson,463 F.2d 216 (9th Cir. 1972), cert. den. 409 U.S. 1028, 93 S. Ct. 472, 34 L. Ed. 2d 322; White v. United States, 394 F.2d 49 (9th Cir. 1968). After fully considering the evidence and all of the trial court's instructions,5 we find no reversible error.

Accordingly, the conviction of appellant should be, and the same hereby is, affirmed.