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Name: Ho v. Newland
Case #: 01-16823
Court: US Court of Appeals
District 9 Cir
Opinion Date: 02/26/2003
Subsequent History: 6/5/03: opn. withdrawn by the Court of Appeals; substituted opn. at Ho v. Carey __ F3d __

The district court’s denial of a habeas petition was reversed where petitioner was deprived of his constitutional right to have a jury decide every element of the offense of second-degree murder because the trial court erroneously instructed the jury that the offense was a general-intent crime. After the trial court gave the erroneous instruction and the jury began deliberating, the prosecutor pointed the error out to the judge. The next day, the court gave an instruction to the jury stating that general intent applied only to the offense of involuntary manslaughter. It did not inform the jury that it had mistakenly instructed it the previous day. Reversal was required because there was grave doubt regarding whether the second day’s instructions cured the erroneous instruction in view of the fact that the court did not confess or correct its error. Since there was no way to determine whether the jury relied on the court’s erroneous general intent instruction or the correct definition, the error was prejudicial.