Appellant was convicted, in a trial by jury, of manslaughter (22 D.C.Code 2405 (1967)) and carrying a dangerous weapon without a license (22 D.C.Code 3204 (1967)). In this appeal he challenged the validity only of the manslaughter conviction. Since we find no reversible error in the proceedings below, his conviction must be affirmed.

An argument developed between two of appellant's friends during a social gathering at his (appellant's) home. After both parties to the altercation produced and were brandishing knives, appellant, in an attempt to quell the disagreement, went into a bedroom and returned with a revolver and ordered his friends out of his home (Tr. 19-20). The friends adjourned to the street but continued their quarrel there. Appellant followed the assailants into the street and, in a second attempt to halt the fracas, told them that he would shoot between them if either attempted to advance on the other (Tr. 22, 32-34, 36). At that point one of the two individuals involved in the argument (Mr. Johnson) shouted at appellant that 'you don't have a damn thing to do with this' (Tr. 72, 132-33), whereupon appellant jumped off the steps in front of his home and pushed Mr. Johnson in the chest. Simultaneously, a shot was fired from the gun appellant still held in his hand. The bullet hit Mr. Johnson in the neck causing his death.

At trial, appellant's sole defense was 'accidental shooting' (Tr. 137). The prosecution's theory was that the shooting was intentional and it sought to convict appellant of murder in the second degree. The trial judge charged the jury on all the essential elements of second-degree murder (Tr. 160-61) and of the lesser included offense of manslaughter (Tr. 162-63). In addition, he also charged the jury on accidental death (Tr. 166). Subsequently, during their deliberation the jury sent a note to the court requesting additional instructions on manslaughter and accidental death. The trial judge then repeated his manslaughter charge, mentioning lack of malice but leaving out the specific mention of adequate provocation or sudden heat of passion that he had included in his earlier charge. The judge also repeated his earlier charge on the circumstances necessary to find accidental killing. The court then queried the jury: 'Does that answer your question?' After an affirmative response he continued on to say: 'Does either counsel have anything to add?' (Tr. 169.) Following a negative response to this question the jury retired and later brought back a verdict of guilty of manslaughter and carrying a dangerous weapon.

On appeal appellant advances a two-pronged argument for reversal of his manslaughter conviction. Initially, he argues that the evidence, as a matter of law, does not establish the elements necessary for a manslaughter conviction. In other words, appellant claims that the jury should have been allowed a choice only between guilty or not guilty of second-degree murder. We do not agree. We feel that the inebriant atmosphere, the heated arguments, and the bantering back and forth clearly established sufficient evidence for a jury to be able to find appellant guilty of manslaughter. Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, cert. denied, 346 U.S. 885, 74 S. Ct. 135, 98 L. Ed. 389 (1953); Bishop v. United States, 71 U.S.App.D.C. 132, 107 F.2d 297 (1939).

Secondly, appellant argues that the trial judge erred by not including all the elements of manslaughter in his second instruction. We find this argument unpersuasive. It has been held that appellant faces a heavy burden in objecting to instructions on appeal that he has acquiesced in at trial. Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261, 21 A.L.R. 2d 1074 (1950); Kelly v. United States, 124 U.S.App.D.C. 44, 361 F.2d 61 (1966); FED.R.CRIM.P. 30. In any event, we find no reversible error in the instructions given since the heat of passion and adequate provocation were stressed in the earlier instruction and since the defense counsel was given specific opportunity to suggest any additions which he thought might be helpful. Thus, it seems clear that the jury was fully cognizant of the fact that, based upon all the evidence and the instructions from the court, it had three separate choices, (1) accidental killing, (2) second-degree murder, or (3) manslaughter. We find no rational basis upon which to disturb their choice. Appellant's conviction therefore must be

Affirmed.

J. SKELLY WRIGHT, Circuit Judge (concurring):

I concur in the court's opinion. Judge Leventhal's concurring opinion focuses on an area of the law which needs attention. I agree with him that a manslaughter verdict may be based on recklessness, and that in an appropriate case such a charge should be given.

I concur in the court's opinion since I think the facts can be stretched to fit the framework of provocation or excessive response (without malice), the traditional mold of manslaughter instructions and verdicts in the District of Columbia.

I am impelled, however, to make a few observations about the facts of the case, and why they indicate culpable homicide, which focus on an approach neither invoked by the prosecutor nor reflected in the instructions to the jury.

The capable and experienced trial judge instructed the jury that for a second degree murder verdict it must find that 'malice' has been established beyond a reasonable doubt. And he defined the term 'malice,' using expressions from our decided cases in about the same words as are contained in Instruction 83 prepared by the Junior Bar Section. He charged the jury (Tr. 160-162):

Now as to the essential ingredients of malice, let me define it for you. In its ordinary use in every day life the word malice would indicate a feeling of hatred or ill will toward another or feeling of hostility toward an individual. In its legal sense malice has a broader significance. It is a state of mind showing a heart regardless of social duty, a mind deliberately bent on mischief. Malice as the law knows it may also be defined as a condition of mind to prompt a man to do a wrongful act wilfully, that is on purpose, as distinguished from accidentally, to the injury of another or the intentional doing of a wrongful act on another without justification or excuse. Malice may be either express or implied. Express malice is where one unlawfully kills another in pursuance of wrongful and unlawful purpose without legal excuse. Implied malice is such as may be inferred from the circumstances of the killing, as for example, where the killing is caused by the intentional use of fatal force without circumstances serving to mitigate or justify the act, or when an act (which) imports danger to another is done so recklessly or wantonly as to manifest depravity of mind in this and disregard of human life.

In determining whether a wrongful act is intentionally done and is therefore done in malice aforethought, you should bear in mind that intent may be deduced from circumstances, from things said and from things done. The instrument or means by which a homicide has been accomplished is always to be taken into consideration in determining whether the act is criminal and in what degree it may be so. If in a prosecution for homicide it is shown that the accused used a deadly weapon in the commission of the act, the jury may infer, but it is not required to infer, malice from the use of the weapon.

As to manslaughter, the judge said that if the Government proved beyond a reasonable doubt that decedent died of a wound inflicted by defendant but failed to prove malice, the jury may consider manslaughter. And he said (Tr. 162-163):

Now manslaughter is the unlawful killing of a human being without malice aforethought. It occurs if homicide is committed at the time of mutual combat or may occur in passion or hot blood caused by adequate provocation. In other words, in order to reduce the offense from murder to manslaughter, there must be shown ample provocation and sudden passion and both of these things must exist at the time the act is done.

The elements which the government must prove beyond a reasonable doubt in the event you reach the lesser included offense of manslaughter, and in order for you to find the defendant guilty of manslaughter are: 1, that this defendant shot the decedent; 2, that the decedent died of the wounds inflicted; 3, that the defendant shot the decedent in sudden passion and without malice; and 4, that the homicide was without legal justification or excuse and not accidental.

Here again the instruction used the same language as part of the instruction prepared by the Junior Bar Section (# 88). Though it omitted part of No. 88, there is no material variance; they are in essence the same instruction.

And so we see that the use of standard instructions put before the jury the possibility of a murder verdict based on recklessness, even in the absence of an intent to kill. But there was no instruction whereby a manslaughter verdict might be rested on recklessness, or any other element indicative of culpable negligence. Instead manslaughter was equated with shooting in the heat of passion.

I respectfully submit that the customary instructions stand the law of criminal homicide on its head when they use recklessness as the basis of verdict only in the instruction on second degree murder, and omit an instruction for a manslaughter verdict based on criminal negligence.

The matter comes to the fore in the present case because the facts are such that although it is possible that defendant is culpable because he shot his gun in the heat of passion (anger), it seems to me equally if not more likely that he fired the gun between the assailants, intending to separate them. Such a firing might well be deemed by the jury to lack the element-- set forth in the malice instruction-- of an act 'done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.' Yet it might very well exemplify the kind of recklessness that calls for a manslaughter instruction, even though there was no heat of passion.

It is time, I suggest, to set matters straight. I see no point in re-traversing the page of history, as distinguished from logic, whereby there has been culled from our appellate opinions the standard instructions now in use.

Instead I propose to set forth what I believe to be the pertinent elements of criminal homicide based on culpable recklessness.

1. There is a basis for a verdict of murder at common law, and also as to second degree murder under our Code, when a defendant's act is so reckless as to indicate a disregard of human life. Thus there is an objective element in 'malice' and second degree murder.1

(Parenthetically I interject to say it is unfortunate that this part of the definition of 'malice' is proposed by the Junior Bar Section even when the judge is defining 'malice' as part of the first degree murder charge. Since 'premeditated' and 'deliberated' murder requires a subjective intent to kill, and indeed reflection on that intent, it may be mischievous and confusing to interlace into an instruction on first degree murder verbiage cast in terms of recklessness. I think a defendant on trial for first degree murder would be entitled to ask that this reference to recklessness be omitted.)

2. In my view a manslaughter verdict may be predicated on recklessness. Our statute contains no definition of manslaughter, except as a definition of sorts may be implied from the fact that the Code's reference to manslaughter omits the term 'with malice aforethought' contained in the definition of murder.2 That is about where this court left the matter in its oft-repeated statement that manslaughter is 'the unlawful killing of a human being without malice.' E.g. Fryer v. United States, 93 U.S.App.D.C. 34, 38, 207 F.2d 134, 138, cert. denied, 346 U.S. 885, 74 S. Ct. 135, 98 L. Ed. 389 (1953).3

Yet it was settled at common law, and, I think, is true under our statute that reckless conduct resulting in death may constitute manslaughter.4 The difference between that recklessness which displays depravity and such extreme and wanton disregard for human life as to constitute 'malice' and that recklessness that amounts only to manslaughter lies in the quality of awareness of the risk.5

In putting this basis of culpability to a jury, care must of course be taken that a verdict is not based on simple negligence. As Professor Wechsler points out:

The ultimate issue is conceived to be whether the actor's failure to perceive the risk 'involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.' Much more than the 'ordinary negligence' of tort law is thus deemed to be involved.6

This problem concerning the instruction to the jury can be handled by avoiding the use in manslaughter instruction of the term 'negligence.' This would confine 'negligent homicide' to the instance expressly provided for by our Code, the misdemeanor of vehicular homicide.7

The consequent gradation for felonious homicide determined by reference to an objective standard is: (1) Murder, for implied malice, where there has been wanton disregard as to taking of life.8 (2) Manslaughter, where there has been recklessness in conduct involving extreme danger of death or serious bodily injury and gross deviation from the standard of conduct that a reasonable man would observe.9