Opinion · Court of Appeals for the D.C. Circuit

Carroll W. Stewart v. United States

324 F.2d 443

Type
Opinion
Court
Court of Appeals for the D.C. Circuit
Jurisdiction
Federal
Date
1963-10-10
Topic
bankruptcy

How later courts describe this case

  • unlawful entry as lesser included offense of housebreaking under former D.C.Code § 22-1801
  • failure to instruct on lesser included offense under one count held harmless, because jury verdict on another count necessarily included a finding of the disputed element under the first count distinguishing the greater offense from the lesser

Citator

UpLaw has not yet analyzed Carroll W. Stewart v. United States. The absence of a flag is not a finding that it is good law.

Cited by
11 opinions
STEWART v. UNITED STATES,324 F.2d 443(D.C. Cir. 1963)
Carroll W. STEWART, Appellant, v. UNITED STATES of America, Appellee.
No. 17861.
United States Court of Appeals, District of Columbia Circuit.
Argued September 17, 1963.
Decided October 10, 1963.
Mr. David Booth Beers, Washington, D.C. (appointed by this court), for appellant.

Mr. Robert D. Devlin, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U.S. Attys., were on the brief, for appellee.
Before DANAHER, WRIGHT and McGOWAN, Circuit Judges.
PER CURIAM.
Upon the appeal of a conviction for housebreaking and larceny, reversal is sought solely by reason of an alleged error of the trial judge in refusing, upon request, to charge that the jury might find appellant guilty of unlawful entry as a lesser offense necessarily included in that of housebreaking. Rule31(c), Fed.R.Crim.P.

While in some circumstances, as here, the elements of unlawful entry (D.C. Code §22-3102(1961)) are comprehended within those of housebreaking (D.C. Code §22-1801(1961)), the latter requires also a finding of larcenous intent. Since the jury found the appellant guilty of larceny as well as housebreaking, it must have determined that larcenous intent was present in this case. Under these circumstances we need not pursue the issue of whether the failure to give the requested charge was error, since, even if it be so regarded, it was harmless in its impact upon the jury's disposition of the crimes charged in the indictment.

Affirmed.Page 444