Green v. United States, No. 21385.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , FAHY, Senior Circuit , and WRIGHT, Circuit
• Citation: 405 F.2d 1368,132 US App. DC 98
• Parties: Kenneth GREEN, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 21385.
• Decision Date: 01 November 1968

132 US App. DC 98, 405 F.2d 1368 (1968)

Kenneth GREEN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 21385.

United States Court of Appeals District of Columbia Circuit.

Argued July 10, 1968.

Decided November 1, 1968.

Mr. James S. Brocard, Washington, D. C. (appointed by this court), for appellant.

Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Seymour Glanzer, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, Circuit Judge.

FAHY, Senior Circuit Judge:

Appellant, 20 years of age at the time of the homicide, stands convicted of first degree murder in the fatal shooting of James E. Cartwright, and is under sentence of life imprisonment. There is no dispute he fired the fatal

405 F.2d 1369

shot as Cartwright was following him out and up the stairs from a basement where a birthday party of young people was in progress. There was evidence he and Cartwright had a dispute during the dancing at the party, that he and other uninvited guests were asked to leave, that he did so, went to his home, and returned to the scene of the party with a loaded pistol. Somewhat later uninvited guests were again asked to leave. Two teenage girls, who were seated in an areaway adjoining the basement, testified that appellant came out of the basement with his friend Davis, followed by Cartwright, that appellant uttered an obscenity, said, "if you haven't been shot before, you're shot now," pulled a gun from his coat pocket and shot Cartwright. In a photograph taken by the police while Cartwright was lying at the bottom of the steps a knife appeared. The girls testified they did not see Cartwright with a knife

Appellant testified that when he left the party the second time and was walking into the yard he heard obscenities and a statement "`turn around.'" He said he turned, that in the darkness he saw Cartwright make an advance toward him with what appeared to be a knife, and that in fear he aimed at Cartwright and fired. A knife was found near Cartwright's body. Other unclaimed knives were also found.

Appellant called four witnesses, three of whom were present at the party, but none actually saw the shooting. One testified that he had seen a knife next to Cartwright's body, and all testified that they had seen Cartwright in the early summer with a knife similar to a hawk-bill knife shown near Cartwright in the photograph. The friend Davis had not been located at the time of the trial.

The court instructed the jury on first degree murder of deliberate and premeditated malice,¹ second degree murder,² and manslaughter,³ as well as on self-defense. Because of error in the instructions regarding malice as hereinafter explained we grant a new trial. Contentions in other respects we think do not raise issues requiring reversal or necessitate discussion in this opinion.

The United States acknowledges that the following portion of the instruction on malice, as the court had held in Belton v. United States, 127 U.S.App.D. C. 201, 382 F.2d 150, was erroneous:

If, in a prosecution of a homicide, it is shown that the accused, that is, the defendant, 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

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