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324 F2d 443 Stewart v. United States

324 F.2d 443

116 U.S.App.D.C. 411

Carroll W. STEWART, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17861.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 17, 1963.
Decided Oct. 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.

1

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. Rule 31(c), Fed.R.Crim.P.

2

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.

3

Affirmed.