Ernest McDonald v. United States

284 F.2d 232, 109 U.S. App. D.C. 98, 1960 U.S. App. LEXIS 3409

Opinion

PER CURIAM.

Appellant was indicted for first degree murder and convicted of second degree murder. One Davis shot and killed one Jenkins. Testimony regarding appellant’s participation was in dispute. There was evidence that appellant and Davis engaged in a violent scuffle with Jenkins, and that after Davis had fired one shot appellant held Jenkins while Davis fired another.

The court did not charge the jury on the presumption of innocence. This was error. Coffin v. United States, 156 U.S. 432, 452, 15 S.Ct. 394, 39 L.Ed. 481; Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 41 L.Ed. 624. The charge on reasonable doubt did not dispense with the necessity of charging on burden of proof. The court did not define “malice aforethought” which is an element of second degree murder. D.C. Code (1951) § 22-2403. There was no charge on involuntary manslaughter. Trial counsel, who was not appellant’s present counsel, did not request these changes, but we think their omission was plain error. It follows that appellant’s conviction must be reversed and the case remanded for a new trial.

Reversed and remanded.