WILLIE L. LOVELESS, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that the trial court erred by failing to allow defense counsel to re-argue the manslaughter charge after initially refusing it and then deciding to give it.
Appellant was tried for second-degree murder and convicted of manslaughter. The trial court initially refused to charge the jury on manslaughter, but …
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PER CURIAM.
Appellant was tried for second degree murder and convicted of manslaughter. At the close of testimony, appellant requested a charge on manslaughter but the court ruled that he would not give such a charge but would charge on second degree murder, which he did. After the arguments had all been concluded, however, the court advised counsel he had changed his mind and considered the manslaughter charge essential. At that point1 appellant’s counsel protested that “neither of us, in view of what your honor said, argued with respect to man slaughter at all.” The appellant was thus precluded from arguing to the jury that even the lesser offense was not supported by the evidence.
Rule 30 in pertinent part provides:
“The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury * * *Fed.R.Crim.P. 30, 18 U.S.C.A. (Emphasis added.)
In the circumstances of this case the least that could have been done to comply with this important rule was to afford counsel an opportunity to re-open and argue the issue of manslaughter. Jackson v. State, 1949, 216 Ark. 341, 225 S.W. 2d 522, 15 A.L.R.2d 484; Fox v. Commonwealth, 1924, 202 Ky. 41, 258 S.W. 950; cf. Clancy v. City of Joplin, Mo.Ct.App.1915, 181 S.W. 120 (civil negligence case). The judgment of conviction is reversed and the case remanded for a new trial.
Reversed and remanded.
. Previously, when the manslaughter charge was refused, the defense preserved its objection to the court’s ruling.
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