*1 702

home the assaultive acts there were Appellant, ROBERTSON, Chester L. independent, separate episode and v. have been admitted evidence not “mosaic.” America, of the whole UNITED STATES of Appellee. lapse Appel- The total time between No. 19608. girl lant’s arrival former friend’s at his killing was and his arrest after the house Appeals United States Court of fifty Plainly the events about minutes. District of Circuit. Columbia prelude at Mrs. Ebron’s house were but a 9, Argued March 1966. Parker, to jury fatal attack 7, July Decided 1966. to know of the actions was entitled Appellant the victim and of at stages Appel- in order to evaluate first deter- lant’s claim of self-defense and to fight aggressor in the mine who was the Parker’s home.

at may repel One at- who is attacked reasonably

tack with whatever force he necessary

believes is the circum- stances,1 provoked but not he has fight fight. provoke One cannot rely on a claim of self-defense provocation in a coun-

when terattack, results previously with-

unless he has fray

drawn from the and communicated To wheth-

this withdrawal.2 determine aggressor Appellant er was the whether he could a claim establish Skelly Wright, dis- J. self-defense, required to sented. leading all consider the circumstances up affray to the fatal Parker’s home. at They Ap- could determine whether not aggressor ap- when he peared at or whether Parker’s door they aggressor Parker was the background Appellant’s

knew the

pearance. Any attempt to insulate affray gone on be-

final from what aggres- concept fore would distort the ag- falling sion and the burdens on an

gressor. were

The District Court’s instructions eminently also made correct but abundantly jury had to clear that the it or Parker

decide whether aggressor. 335, States, U.S.App.D.C. 78, 256 Brown v. United U.S. United 121 348 Inge 501, (1921); opinion), 84, (concurring 41 S.Ct. de F.2d 98 v. 123 247, nied, 909, 15 L.Ed.2d Rowe v. United U.S. Frady (1896); 41 L.Ed. *2 given confusing

as was somewhat its formulation; and it also contained an (i) undesirable use of the word “crim- (ii) phrase “very inal” and of the factorily” in one of the references to the explanation resting upon the defendant. there was a consid- colloquy erable between the court and de- charge fense counsel at the of close propriety as to the of one of the instruc- given, any no reference of kind was by particular the defense to this possession. instruction We have con- cluded, in the context of the entire transcript trial, plain of the require error rule does not reversal. 52(b), Rule Fed.R.Crim.P. primary concern which this court has had with the instruction on possession jury is that be aware Freedman, Washington, Mr. Robert L. possession, explained, creates (appointed by court), C. this for D. guilt jury an inference of which the pellant. by it, choose to find reason of Mays, Atty., Mr. Charles A. Asst. U. S. not a which ends the matter Bress, with whom Messrs. David G. U. jury so far as the is concerned. Al Q. Atty., S. Frank Nebeker and Victor though the instruction here is not artis Caputy, Attys., W. Asst. U. S. were on the tically phrased, we believe the court made brief, appellee. for genuine apprise jury effort to of Before Wilbur Cir- Senior K. distinction; Miller, this and we do not believe cuit Wright jury McGowan, actually any left Judges. about it. The defense no in submitted possession and, struction of its own on PER CURIAM. given, after the instruction was the de objection fense made no kind to appeal On this from a McKnight it. robbery, sought conviction of reversal is (1962), 309 F.2d 660 by insufficiency reason asserted this court sustained a conviction because evidence, giving as well as the objection of the lack of in the case of a objection certain instuctions to which no admittedly instruction which was made.1 Our examination of the rec faulty major respect. this We ord does not cause us to feel that re disposed reverse, should be less ab compelled reasons; versal for these objection, sent an in a case where the may appro and we think our comment by apparent. fault is no means so priately be confined to one of them. This is the matter of the instruc We think the reference to “crim given by posses tion the trial court on unfortunate, inal” was but it does not property. sion of appear stolen The instruction par- to have been a deliberate or respect given Error is also claimed in unexceptionable, is otherwise we said, court’s failure following accede the defense have Holland v. United request the reasonable doubt in expanded by struction be a reference to 99 L.Ed. 150 necessary. this is not every hy exclusion reasonable Hunt v. United pothesis guilt. where, U.S.App.D.C. other than But the reasonable doubt obligation is, appellant. if “But the ticularized reference by portion find stolen or lost of a that the was one immediate context Robinson, highly in the where it is Charlotte which was the instructions shortly defendant, e., after Robertson i. when favorable to the witness, loss, by trying to communicate you may should so general principle infer doubts always deem it advisable that this in favor of a are to be resolved *3 person property took the who in a criminal ease. complainant. way, “very same the reference to factorily explained” court came after the satisfactorily very say “I unless it is that it was for the clear you by explained to this defendant as to determine whether the defendant’s property posses- in his to how the satisfactory explanation to it. sion.” objection suggests again that absence of Since the trial court’s reference counsel, defense who heard the as a criminal have under- presumably and was alert to inflec- innocence, presumption I mined the tions, impression did not have the required. think reversal is Under the circumstances that his client was speculate on circumstances we should being seriously prejudiced. degree prejudice appellant re- sulting pre- from this reference. right sumption innocence, like WRIGHT, Judge J. SKELLY counsel, “is too fundamental and abso- (dissenting). indulge in nice lute to allow courts to charged robbery1 Appellant was with preju- calculations as to the amount snatching. purse Al- in the form of arising Glasser dice from its denial.” though he was shown to be in 60, 76, 62 v. United 315 U.S. alleged from the victim’s billfold (1942). purse, snatching the evidence to the “very appears me, too, It entirely circumstantial. satisfactorily” explanation testified that he had found the billfold placed appellant also tended to under- under a seat on the bus on which both innocence, par- mine the complaining pas- he sengers. witness were ticularly where, appellant billfold, explained he had found the charged in The trial witness testified part as follows: prior she had lost her billfold on a your in “But if it raises a doubt occasion, having in a left it on a counter mind, required because are not justifi- store. some there is find without a reasonable doubt on placing in law for burden cation his possession, how the came into his satisfactory explanation on a defend- required only he goods, ant found of stolen your mind, question he raise a be- requires there is none which ex- questions cause all where there is planation “very satisfactory.” to be ques- must determine those respectfully I dissent. favor of the criminal. Compare Inman v. United § D.C.Code F.2d 256 denied, 3 L.Ed.2d 116