SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Appellant was indicted and tried on counts of first degree murder
and carrying a dangerous weapon without a license.
On the first count, after receiving instructions affording a choice of verdicts ranging downward from first degree murder to acquittal by reason of self-defense, the jury found appellant guilty of murder in the second degree. On the second count, the jury found him guilty as charged, a determination he does not seek to disturb. The trial judge imposed a sentence of imprisonment for a term of from 15 to 45 years, and this appeal followed.
Appellant attacks the murder conviction on several different grounds. We deal primarily with two, both relating to instructions by the trial judge to the jury affecting the legal definition of malice
as an essential element of murder. We find that the instructions were doubly erroneous and, upon review of the entire record, that the errors operated prejudicially to appellant. We accordingly reverse the second degree murder conviction and remand the case for appropriate action.
I
Appellant admitted firing the three pistol shots that ended the life of the deceased, Walter McQueen. Appellant insisted that he did so in self-defense, while the Government, as we have indicated, averred deliberate and premeditated murder. The death scene was a vacant lot on a Sunday morning, where a group of at least five persons had congregated about a parked truck. It appears without dispute that all parties had been drinking,- and that two, Harriet B. Goodwin and McQueen, were engaged in a dice game in the back of the truck. Beyond this, the descriptions of the shooting related at trial progressively diverged.
According to Mrs. Goodwin, appellant came onto the lot and sought but was denied admittance to the dice game in progress. Appellant left but returned within a few minutes, pulled out a pistol and shot McQueen. As the latter ran away, the witness turned her head, and heard but did not see additional shots. Samuel Bennett, who lived across the street from the lot, also heard a shot, and a bit later saw appellant, arm outstretched, raise the pistol to eye level and fire again at McQueen as he endeavored to flee.
A third Government witness, Daniel Wood Minor, admittedly a close friend of the deceased, gave a more elaborate account. Appellant had entered the dice game, but after losing two dollars had left, and was later denied readmittance by McQueen. At this point, appellant went to his car, removed the pistol from the trunk and placed it under his belt.
He returned, drew the pistol, but was admonished by Minor to put it away
because “[i]t don’t make no sense.” Appellant then replaced the gun under his belt, walked around to face McQueen, and shot him. McQueen ran, and appellant shot him again; McQueen fell to the sidewalk and, as he lay there, appellant shot him a third time. There had been, Minor said, no argument or fight between appellant and McQueen.
Appellant, the sole defense witness, stakes his claim to a different version. He was gambling with McQueen when a dispute arose over whether appellant had “made that point.” When appellant reached for the money he assertedly had won, McQueen slugged him in the mouth, knocked him down and kicked him. Fearful that McQueen was coming at him again, appellant drew a pistol
and shot McQueen three times, the total number of cartridges in the pistol. After the shooting, appellant drove off in his car, threw the pistol away, and on the following day surrendered to the police. At his preliminary hearing, he exhibited a cut lip and a loose tooth to the United States Commissioner, and attributed them to McQueen’s attack.
McQueen died, during emergency surgery, later on the day of the shooting. An autopsy revealed that three bullets entered his body: at the left flank, the right back and the side. These wounds caused massive hemorrhaging which produced shock, from which death ensued. A blood test revealed an alcoholic content at a level generally classified in the intoxicating range, but no lacerations on his hands or arms were noted.
The trial judge charged the jurors on the elements of first and second degree murder, manslaughter and self-defense, explaining that the verdict should represent whichever one of those four possibilities that accorded their view of the evidence. Over appellant’s objection, the judge left to the jury’s discretion the question whether the death penalty should follow
.in the event of a verdict of first degree murder.
While
deliberations were under way, the judge complied with the jury’s specific request for reinstruction on the three degrees of homicide, but denied appellant’s bid for reinstruction on self-defense as well.
As we have stated, the jury fixed appellant’s guilt at murder in the second degree.
II
It is against a background deeply rooted in history that appellant’s principal grievances on this appeal — alleged instructional errors — must be scrutinized. At common law, murder was un-
lawful homicide done with “malice aforethought
done without it, the crime was manslaughter.
Adoption of these doctrines as part of the law of the District of Columbia
has preserved this basic distinction,
although time has eroded literalness from “aforethought” as an ingredient of the distinguishing criterion.
So it is that today we find malice
as the sole element differentiating murder-from manslaughter.
The passage of time has also witnessed the legislative refinement of murder into two degrees unknown to the common
law.
Unlawful homicide committed with “deliberate and premeditated malice” is murder in the first degree;
committed with malice, but without deliberation and premeditation, it is murder in the second degree.
The tripartite division of unlawful homicide into murder in two degrees and manslaughter, and the role assigned to malice in the classification, assume progressive importance as we proceed through an examination of appellant’s contentions.
Two passages in the trial judge’s instructions to the jury are. identified as targets of appellant’s main assault on his conviction.
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SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Appellant was indicted and tried on counts of first degree murder
and carrying a dangerous weapon without a license.
On the first count, after receiving instructions affording a choice of verdicts ranging downward from first degree murder to acquittal by reason of self-defense, the jury found appellant guilty of murder in the second degree. On the second count, the jury found him guilty as charged, a determination he does not seek to disturb. The trial judge imposed a sentence of imprisonment for a term of from 15 to 45 years, and this appeal followed.
Appellant attacks the murder conviction on several different grounds. We deal primarily with two, both relating to instructions by the trial judge to the jury affecting the legal definition of malice
as an essential element of murder. We find that the instructions were doubly erroneous and, upon review of the entire record, that the errors operated prejudicially to appellant. We accordingly reverse the second degree murder conviction and remand the case for appropriate action.
I
Appellant admitted firing the three pistol shots that ended the life of the deceased, Walter McQueen. Appellant insisted that he did so in self-defense, while the Government, as we have indicated, averred deliberate and premeditated murder. The death scene was a vacant lot on a Sunday morning, where a group of at least five persons had congregated about a parked truck. It appears without dispute that all parties had been drinking,- and that two, Harriet B. Goodwin and McQueen, were engaged in a dice game in the back of the truck. Beyond this, the descriptions of the shooting related at trial progressively diverged.
According to Mrs. Goodwin, appellant came onto the lot and sought but was denied admittance to the dice game in progress. Appellant left but returned within a few minutes, pulled out a pistol and shot McQueen. As the latter ran away, the witness turned her head, and heard but did not see additional shots. Samuel Bennett, who lived across the street from the lot, also heard a shot, and a bit later saw appellant, arm outstretched, raise the pistol to eye level and fire again at McQueen as he endeavored to flee.
A third Government witness, Daniel Wood Minor, admittedly a close friend of the deceased, gave a more elaborate account. Appellant had entered the dice game, but after losing two dollars had left, and was later denied readmittance by McQueen. At this point, appellant went to his car, removed the pistol from the trunk and placed it under his belt.
He returned, drew the pistol, but was admonished by Minor to put it away
because “[i]t don’t make no sense.” Appellant then replaced the gun under his belt, walked around to face McQueen, and shot him. McQueen ran, and appellant shot him again; McQueen fell to the sidewalk and, as he lay there, appellant shot him a third time. There had been, Minor said, no argument or fight between appellant and McQueen.
Appellant, the sole defense witness, stakes his claim to a different version. He was gambling with McQueen when a dispute arose over whether appellant had “made that point.” When appellant reached for the money he assertedly had won, McQueen slugged him in the mouth, knocked him down and kicked him. Fearful that McQueen was coming at him again, appellant drew a pistol
and shot McQueen three times, the total number of cartridges in the pistol. After the shooting, appellant drove off in his car, threw the pistol away, and on the following day surrendered to the police. At his preliminary hearing, he exhibited a cut lip and a loose tooth to the United States Commissioner, and attributed them to McQueen’s attack.
McQueen died, during emergency surgery, later on the day of the shooting. An autopsy revealed that three bullets entered his body: at the left flank, the right back and the side. These wounds caused massive hemorrhaging which produced shock, from which death ensued. A blood test revealed an alcoholic content at a level generally classified in the intoxicating range, but no lacerations on his hands or arms were noted.
The trial judge charged the jurors on the elements of first and second degree murder, manslaughter and self-defense, explaining that the verdict should represent whichever one of those four possibilities that accorded their view of the evidence. Over appellant’s objection, the judge left to the jury’s discretion the question whether the death penalty should follow
.in the event of a verdict of first degree murder.
While
deliberations were under way, the judge complied with the jury’s specific request for reinstruction on the three degrees of homicide, but denied appellant’s bid for reinstruction on self-defense as well.
As we have stated, the jury fixed appellant’s guilt at murder in the second degree.
II
It is against a background deeply rooted in history that appellant’s principal grievances on this appeal — alleged instructional errors — must be scrutinized. At common law, murder was un-
lawful homicide done with “malice aforethought
done without it, the crime was manslaughter.
Adoption of these doctrines as part of the law of the District of Columbia
has preserved this basic distinction,
although time has eroded literalness from “aforethought” as an ingredient of the distinguishing criterion.
So it is that today we find malice
as the sole element differentiating murder-from manslaughter.
The passage of time has also witnessed the legislative refinement of murder into two degrees unknown to the common
law.
Unlawful homicide committed with “deliberate and premeditated malice” is murder in the first degree;
committed with malice, but without deliberation and premeditation, it is murder in the second degree.
The tripartite division of unlawful homicide into murder in two degrees and manslaughter, and the role assigned to malice in the classification, assume progressive importance as we proceed through an examination of appellant’s contentions.
Two passages in the trial judge’s instructions to the jury are. identified as targets of appellant’s main assault on his conviction. Each appeared in the trial judge’s original charge and as well in the portion thereof later repeated at the jury’s request. Both passages were erroneous, and we have so held in a series of recent cases.
The first of the impugned passages was:
In determining whether a wrongful act is intentionally done and is, therefore, done with malice aforethought,
you should again bear in mind that every man is presumed to intend the natural and probable consequences of his own act.
In charging that “a wrongful act * * * intentionally done * * * is * * * done with malice aforethought,” the judge equated intent with malice, an essential ingredient of murder. In Green v. United States,
we condemned an instruction in practically identical language, declaring that
A wrongful act intentionally done is not * * * done with malice. Omitted from this definition of malice is the element of wilfulness, which the court elsewhere included in its definition of malice,
or that the intentionally done wrongful act was without justification or excuse.
We also pointed out the harmful propensity of such an instruction:
An element of both degrees of murder is malice; but malice is not an element of manslaughter. Yet manslaughter may be and often is the intentional commission of a wrongful act. From a legal standpoint, therefore, when the court advised the jury that a wrongful act intentionally done is done with malice the effect, unless appellant were found not guilty, was • to take the case out of the category of manslaughter and place it in the category of murder, notwithstanding on the facts there was an issue of manslaughter for the jury.
We accordingly reversed Green’s conviction and remanded the case for a new trial.
The second instructional passage complained of by appellant was:
If in a prosecution for homicide it is shown that the accused used a deadly weapon in the commission of the homicide,
the law infers or presumes from the use of such weapon,
in the absence
of explanatory or mitigating circumstances, the existence of the malice essential to culpable homicide.
You are instructed as a matter of law that a gun is a deadly weapon.
We have thrice had occasion to consider instructions of that import, and in each instance have disclaimed a legally ecompelled inference or presumption of malice from the use of a deadly weapon in a homicide case.
In Belton v. United States,
we explicated:
Malice is an ultimate fact that can rarely be proved by direct evidence, it is both desirable and necessary to instruct the jury that they may infer the existence of malice from other evidentiary facts, including the deadly nature of the weapon utilized. But that does not mean that ‘the law infers’ malice from use of a deadly weapon. Malice may be established by reference to either of two standards: One, a subjective standard — whether the defendant actually intended or foresaw that death or serious bodily harm would result from his act; and the other, an objective, “reasonable man” standard — whether the defendant should have foreseen that such result was likely. It is for the jury to determine whether the requisite state of mind or negligent pattern of behavior existed.
The judge erred in stating that ‘the law infers * * * malice’ from the use of a deadly weapon, and would have been obligated upon request to substitute instead an instruction charging that the law permits the jury to draw this inference of malice.
Ill
Our function does not end with recognition of these instructional miscues; there remains the question whether, in the circumstances presented by this litigation, they warrant reversal. That task, one often fraught with difficulty, is compounded here by the absence of protest to the instructions in the trial court, where possibly the mistakes, upon identification, could have been corrected.
Appellant can survive the omission of appropriate objections
only if we should exert our authority, which he invokes, to notice “[p]lain errors or defects affecting substantial rights.”
The problem, however, is not at all new; of late, we have treated, in the plain error context, situations featuring the very same errors.
In our
Belton
and
Howard
cases, which involved only the instruction that the law infers malice from use of a deadly weapon, we ascertained that the error did not likely produce such prejudice as to signal an application of the plain error rule. On the other hand, in our
Green
case,
where the trial judge gave both that instruction and the instruction equating intentional conduct with malice, the combination of the two missteps steered us to the
opposite conclusion, and to a reversal of the conviction.
These decisions, and the considerations upon which they were predicated, exert their weight as we ponder the disposition we should make on this appeal.
The inquiry here, as it was in the cases cited, is the probable impact, appraised realistically, of the particular instructional mistakes upon the jury’s factfinding function. In
Belton,
we examined the faulty instruction, not in isolation but, as always, against the backdrop of related segments of the trial judge’s charge, and concluded that it was unlikely that in context the single misstatement led the jury astray.
We also felt that since the jury had found Belton guilty of first degree murder, and thus of a premeditated and deliberate killing,
it was improbable that the jury could have failed to also find malice
In
Howard,
when we came across the same instruction, we were moved by the fact that “the proof of malice was not weak or equivocal,”
and by the further fact that the error was partially cured by another instruction given by the trial judge.
In both cases, it was the union of the recited conditions that left us unpersuaded that we should call forth the plain error rule.
In
Green,
however, we observed that the affirmance in
Belton
and
Howard
“rest[ed] upon the over-all factual situations in those cases,”
and we did “not construe the decisions as laying down a binding rule that the error is never reversible unless the subject of objection.”
Moreover, we reiterate, while
Belton
and
Howard
presented their problems in terms of but one miscue — a lapse in each instance mitigated by other circumstances — in
Green
there were two erroneous instructions on malice. And although Green’s conviction of first degree murder necessarily implied affirmative findings by the jury on premeditation and deliberation, we reversed because we could not say that the jury had not followed the incorrect rather than the correct instructions on malice.
In the case at bar, the trial judge’s charge contained the same two instructions that occasioned our reversal in
Green
and, unlike any of the three cases cited, both of those instructions were later reread to the jury. What, then, we face is bad advice twice given to the jury to the effect that a wrongful act done intentionally is done with malice, a state of mind which the law presumes from the use of a deadly weapon. As in
Green,
we are unable to derive from the remainder of the judge’s charge a rectification of error on such a scale. And, unlike
Belton,
there was no first-degree murder verdict and, unlike
Howard,
no subsequent ameliorative statement by the judge, to reduce the impact of the instructional mistakes. As a last resort,
we look then, to the evidence, for the defense as well as for the prosecution, to determine whether appellant’s second degree murder conviction finds salvation in the strength of the Government’s showing on malice.
IY
Though, at the trial, appellant stood alone against his accusers, he was entitled to the jury’s evaluation of his testimonial account of the shooting, uninfluenced by misleading instructions from the court. And on the testimony appellant gave, the jury could have set-tied on manslaughter as its verdict on either of two bases. The first would have given but normal operation to well settled principles applicable to homicide in the heat of passion arising suddenly on adequate provocation.
By appellant’s theory, several persons were drinking and playing dice when an argument arose over participation in the game. When one disputant resorted to fists, the other responded with a pistol, and in the anger of the moment emptied its contents at the victim. The rebuff, the acrimonious words and the subsequent physical assault appellant charged to McQueen might have been sufficient in the eyes of the jury to induce the violent emotional state that serves to reduce homicide from murder to manslaughter.
But the jury, compliably with the judge’s erroneous instructions, might have felt obliged to presume the existence of malice from appellant’s intentional, though possibly impassioned, use of the gun.
The second basis for a possible verdict of manslaughter might have arisen on failure of appellant’s claim of self-defense. While the actual verdict — of second degree murder — makes it plain that the jury did not accept that claim in full, a total rejection of appellant’s recital of the facts is not nearly so evident.
An unprovoked assault by another, such as appellant described, is sufficient cause
for one to take up his own defense, especially when he finds himself lying on his back before his attacker.
At the same time, as the trial judge instructed, the level of the defensive response must be related to the apparent necessities of the occasion, including the degree of force used by the attacker.
Here, by appellant’s own version, a fistic assault by a smaller man was met with a blazing pistol in the hand of one larger. Such a response may well be .deemed disproportionate, but a jury is free to take into consideration not only the magnitude of the attack but also the predicament the accused believes himself to be in.
Appellant’s jury may have recognized an obstacle to finding self-defense simply from the amount of force appellant used to repel the deceased’s attack. And if the jury rejected self-defense just because appellant imprudently misjudged the response necessary in the situation, his offense might well have been manslaughter, arising from the unreasonableness of the judgment he made.
Here again, by reason of the faulty instructions on malice, the jury may have felt compelled to leap over manslaughter directly to second degree murder on what may have been only a partial failure of appellant’s self-defense claim.
The success of the prosecution hung on the jury’s acceptance of the testimony of three witnesses, Mrs. Goodwin, Minor and Bennett. Of these, the first two were by far the most important, and the credibility of each was somewhat tainted. Confessedly, Mrs. Goodwin had been drinking before the fatal episode unfolded and also shortly before she took the witness stand at the trial. Minor, too, had been drinking prior to the homicidal events to which he would later testify. Furthermore, Mrs. Goodwin testified that Minor and McQueen, the deceased, were close friends, and that Minor had told her that he wanted to get even with appellant and would say anything to get him convicted. Minor himself acknowledged at trial a lifelong friendship with McQueen, who, he stated, “was like a brother to me.” Minor admitted that he had told Mrs. Goodwin that he “want[ed] to get even with” appellant, but denied saying that he would lie about the affair. Even if the jury discarded the acknowledged statement as a manifestation of bias, the difference between making or not making the unacknowledged statement had obvious portents insofar as the assessment of Minor’s credibility was concerned.
The testimony of these two witnesses was, moreover, inconsistent on points that could have had importance to the jury. Although in Mrs. Goodwin’s story appellant was never in the dice game, Minor avowed that appellant participated to the tune of losing two dollars, left the game but came back only to be refused readmittance by McQueen. We think a jury inquiring into malice could view differently the frustration of one who was
already a loser in the game and one who had not yet tested his luck.
Additionally, Mrs. Goodwin said that appellant had the pistol on his person somewhat earlier during the day when he had shown it to her.
This might have suggested to the jury that appellant was carrying the pistol at the time his argument with McQueen arose. Minor, on the other hand, testified flatly that appellant went to his car to get the pistol shortly before he returned to do the shooting.
We have no way of knowing whether, by the jury’s assessment, these testimonial details harmonized or conflicted.
We do know that if they diverged the difference between the two accounts had a conspicuous relationship to the question whether the shooting was so impulsive as to connote manslaughter, or was so much less so as to indicate the malice that makes for murder.
We are mindful of the testimony for the Government that appellant fired the first shot without any prior attack by McQueen, and the last two shots while the latter was in flight. That testimony, however, if believed by,the jury, would have sufficed to sustain not only a finding of malice but findings of premeditation and deliberation as well,
yet the jury did not return a verdict of first degree murder. Appellant, on the other hand, told the jury that all shots were fired while he was in the throes of an assault by McQueen and a continuing state of passion aroused thereby. The jury had to discount some of the Government’s evidence and accept some of appellant’s before it could report a verdict of second degree rather than first degree murder. The jury would not have broken new ground had it, under such conditions, returned a manslaughter verdict despite the fact that appellant continued firing at a retreating opponent.
In sum, the Government’s case, though rather strong if the testimony of its two prime witnesses was to be fully believed, suffered from conflicting testimonial descriptions as to pre-shooting events that were clearly significant on the question of malice. The contradictions emerged at points at which observant witnesses are not likely to be mistaken, and the credibility of each witness was further tarnished by transpirations bearing directly on testimonial trustworthiness. The jury brought in a verdict of second degree murder only after mature deliberation, during the course of which it requested reinstruetion on each of the three degrees of homicide tendered for its consideration. As the trial judge sensed when the request was received, the critical element was malice, the role of which the judge sought to clarify on reinstruction.
Notwithstanding that, the man
slaughter issue could not fairly be laid before the jury so long as it labored under a misapprehension, which the new instructions served to deepen, concerning the definition of malice as the one ingredient distinguishing manslaughter from murder. We cannot know precisely what effect the erroneous instructions may have had on the jury but, as it was, the jury chose not to accept the whole of the Government’s evidence bearing on the degree of appellant’s culpability.
All circumstances considered, we are led to the conclusion that the plain instructional errors we find in this case might well have put substantial rights of appellant in such serious jeopardy as to warrant our estimate of their potential effect on the verdict. And weighing carefully the relevant factors, we find ourselves unable to say with fair assurance that the verdict was not swayed by the judge’s instructional errors.
With a doubt as grave as that arising on this record as to whether the errors led the jury astray, appellant’s conviction of murder cannot stand.
The judgment appealed from, so far as it convicts appellant of murder in the second degree, is accordingly reversed and the case is remanded to the District Court for a new trial on the first count of the indictment
unless the Government consents, and the trial court considers it in the interest of justice after hearing from both parties, to enter a judgment of manslaughter.
So ordered.