Opinion
No. 9460.
Argued November 18, 1964.
Decided November 20, 1964.
Frank N. Cowan, Richmond, Va. (Court-assigned counsel), for appellant.
Thomas B. Mason, U.S. Atty., for appellee.
Before SOBELOFF, Chief Judge, BELL, Circuit Judge, and NORTHROP, District Judge.
In this case there was no instruction by the District Court as to the elements and nature of the crime charged in the indictment, nor was there a request for one. This court cannot and will not affirm a conviction by a jury unless the District Court instructs as to the elements of the offense charged in the information or indictment, whether requested or not. The trial court cannot adopt by reference the exposition of the law as argued to the jury by counsel and escape its duty to instruct under Rule 30 of the Rules of Criminal Procedure. The most important and essential part of instruction as to the law which the jury is to apply in a case is the essential elements of the crime charged. There can be no substitute for such an instruction to the jury by the judge in the presence of counsel and the defendant. United States v. Noble, 155 F.2d 315 (3 Cir. 1946).
In United States v. Levy, 153 F.2d 995 (3 Cir. 1946), where the court reversed because the offense charged was not defined in the instruction, even though the defendant did not make a timely request for such instruction, that court said, at 999:
"It was error of the highest degree to submit the case to the jury without adequate instructions as to the law allegedly violated by the defendant on trial and impels the reversal of the judgment."
We reverse and remand. Undoubtedly other assignments of error will be taken care of at the new trial.
Reversed and remanded.