284 F2d 232 McDonald v. United States

284 F.2d 232

Ernest McDONALD, Appellant
UNITED STATES of America, Appellee.

No. 15782.

United States Court of Appeals District of Columbia Circuit.

Argued October 6, 1960.

Decided November 3, 1960.

Messrs. Eugene F. Mullin, Jr., and J. Parker Connor, Washington, D. C. (both appointed by this court) for appellant.

Mr. Stephen N. Shulman, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.


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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.