with whom EDGERTON, BAZELON and WASHINGTON, Circuit Judges, join (concurring in part and dissenting in part).
I concur in affirming the conviction of robbery. As to the conviction of first degree murder, carrying the death penalty, I dissent, being of the opinion that defendant is entitled to a new trial of the murder charge.
Appellant committed the homicide. This is not in dispute. The question for the jury, submitted under the court’s instructions, was whether the homicide was committed during the perpetration of a robbery. The homicide charge is what is commonly known as “felony murder,” a category of first degree murder, 22 D.C. Code, § 2401 (1951), which is killing another in the perpetration of certain enumerated felonies, robbery in this case. The indictment as found by the' grand jury, however, contained a second count, charging first degree murder based on “deliberate and premeditated malice,” elements which need not be proved for first degree “felony murder.” This second count was withdrawn by the Government at the beginning of the court proceedings. Defense counsel at first assented to the withdrawal but later the same day and before the jury was impanelled and sworn, and after consultation with defendant, unsuccessfully requested the court to reinstate the count. The request was made for the very purpose of insuring the right of the jury to consider second degree as well as first degree murder. The refusal of the court to reinstate would present for me a serious question if the absence of the second count dispensed with the necessity for an instruction on second degree murder. I conclude, however, that in the circumstances of the case defendant was entitled to such an instruction under the felony murder count which went to trial.
No instruction on second degree murder was given to the jury. For this reason the jury had no alternative but to find that the homicide was committed during the robbery, and therefore was first degree murder, or else to acquit the defendant of homicide. Yet as clearly appears from the majority opinion, there was evidence from which the jury could find that the robbery had been terminated by the arrest of defendant before he gained possession of Officer Brereton’sgun and killed him. If an arrest had been made before the shooting — a question of fact which was explicitly submitted to the jury — the felony murder count could not be sustained. Since in that event the evidence would support a. conviction of second degree murder it was essential that the jury be instructed as to that offense.1 This follows from an elementary rule of general application. Where the evidence supports either of two offenses, one less serious than the other and an “included” offense, the court instructs in a manner to permit the jury to convict of either depending upon how they resolve the conflicting evidence. This is simply a matter of giving the jury the law applicable to the facts of the case as they may be found by the jury. Goodall v. United States, 86 U.S.App.D.C. 148, 151, 180 F.2d 397, 400, certiorari denied 339 U.S. 987, 70 S.Ct. 1009, 94 L.Ed. 1389.
That this general rule applies in this jurisdiction notwithstanding the indictment is for felony murder is clear. As stated by the Supreme Court in Green v. United States:
“The suggestion is made that second degree murder is not an offense included in a charge of felony murder under the District Code because it involves elements different from those necessary to establish a felony murder and therefore that Green could not legally have been convicted of second degree murder under the indictment. We fail to comprehend how this suggestion aids the Gov-*569eminent. In the first place, the District of Columbia Court of Appeals has expressly held that second degree murder is a lesser offense which can he proved under a charge of felony murder. Goodall v. United States, 86 U.S.App.D.C. 148, 180 F.2d 397; Green v. United States, 95 U.S.App. D.C. 45, 218 F.2d 856.”
355 U.S. 184, 194 note 14, 78 S.Ct. 221, 227, 2 L.Ed.2d 199.
The evidence to justify an instruction ■on the “lesser offense” heed be only slight. Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980. It amply meets the test in this case. Indeed, the case went to the jury on the theory of a factual ■issue whether the robbery had been terminated by the arrest of defendant before he shot the deceased. The issue of arrest could be decided either way on the evidence and the court so instructed the jury. When this is considered with the fact that there can be no doubt there was ■evidence from which the jury could find the shooting was with malice aforethought, see 22 D.C.Code, § 2403 (1951), a second degree instruction was required. Goodall v. United States, supra. And see Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522; McDonald v. United States, 109 U.S.App.D.C. 98, 284 F.2d 232. The jury could not validly be boxed in with the alternative of out-and-out acquittal or a conviction only of first degree felony murder. The factual issue as to the arrest required the jury to be instructed as to the law applicable to either resolution of that issue. They could not be limited to a verdict of guilty of felony murder if they found the arrest had not been effected and of not guilty if they found it had been effected. For if they found the latter there was evidence upon which they could rest a second degree verdict. They were not so instructed; yet this was a vital part of the law of the case. As the majority points out the court instructed the jury they could find an arrest before the homicide — that is, they could find the homicide was not in the perpetration of a felony — yet the court left the jury in that event with the alternative only of acquittal when there was also on the evidence the alternative of a verdict of second degree murder.
The fact that the jury found defendant guilty of felony murder of course does not foreclose the issue of second degree; for the verdict can be deemed even factually valid only if rendered under proper instructions as to the law. The verdict, in other words, does not prove itself unless rendered under instructions which give the jury before they resolve the factual issues the latitude of verdicts the law permits, dependent upon how they shall resolve those issues. This is a commonplace in the review of both civil and criminal cases.
Failure of counsel to request the instruction at the time the court was charging the jury does not relieve the courts of responsibility in the matter. Not only is this a capital case, but, as we have said, the trial court, before the jury was impanelled and sworn, had refused the request of defense counsel to reinstate count two although counsel stated to the court he desired the count reinstated so that the jury would have the basis for a conviction of a lesser offense,2 It seems clear that when reinstatement was denied counsel was of opinion the defendant would not be entitled to the instruction under the felony murder count which remained. Especially in these circumstances the absence of further request does not preclude our consideration of the merits of the problem. The matter is vitally related to the law of the case, wherein tbp chief responsibility in any event lies with *570the court. The error is strongly pressed in this court. Even were it not we should pass upon it:
“Although no objection as to the form of these instructions is urged here by counsel for petitioner, this Court in a criminal case may notice material error within its power to correct even though that error is not specifically challenged and certainly should do so, even in cases from the District of Columbia, where life is at stake. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345; compare [18 U.S.C.A.] Rules 54(a) (1), 59, 52(b), Rules of Criminal Procedure.”
Fisher v. United States, 328 U.S. 463, 467-468, 66 S.Ct. 1318, 1320, 90 L.Ed. 1382. And see Stewart v. United States, 94 U.S.App.D.C. 293, 296, note 7; 214 F. 2d 879, 882 note 7; Collazo v. United States, 90 U.S.App.D.C. 241, 253, 196 F.2d 573, 585, certiorari denied 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364; Kinard v. United States, 68 App.D.C. 250, 254, 96 F.2d 522, 526; McDonald v. United States, supra.
My reference to the failure of counsel to call the matter again to the trial court’s attention is not in criticism; it is rather in recognition of the difficulties confronting trial counsel in the case. In unsuccessfully seeking reinstatement of count two he did in fact take steps to bring the issue of second degree into the trial.
It may be the result would have been the same had the instruction been given. One cannot say. One can say, however, that this is for a jury to decide under adequate instructions on the law applicable to the facts as the jury might find them. Only by such a decision can final judicial disposition be made, in my opinion, of this most deplorable homicide.
I would affirm the conviction of robbery and grant a new trial of the murder charge.
. Since the majority affirm I discuss the matter of second degree only, omitting consideration of manslaughter or the claim of excusable homicide. For purposes of clarity and simplicity, I treat the case as involving only the necessity of an instruction on second degree murder-
. Counsel stated at the time of the request as follows:
“The reason we would like to reinstate it is that the jury would have the choice of a finding of guilty of felony murder, ■which would mean the electric chair, or just robbery. With first degree murder the jury would have the opportunity to find for a lesser homicide charge, second degree, and so forth. We would like the jury to have that choice.”