329 F2d 257 King v. United States

329 F.2d 257

Robert C. KING, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18119.

United States Court of Appeals District of Columbia Circuit.

Argued December 4, 1963.

Decided January 2, 1964.

Petition for Rehearing Denied January 29, 1964.

Certiorari Denied April 20, 1964.

See 84 S.Ct. 1195.

Mr. Paul A. Lenzini, Washington, D. C., with whom Mr. Martin L. Friedman, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. William H. Willcox, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., and Mr. Frank Q. Nebeker and Miss Barbara A. Lindemann, Asst. U. S. Attys., were on the brief, for appellee. Mr. B. Michael Rauh, Asst. U. S. Atty., also entered an appearance for appellee.

Before PRETTYMAN, Senior Circuit Judge, and BASTIAN and McGOWAN, Circuit Judges.

PER CURIAM.

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1

Appellant was convicted on a two-count indictment for taking indecent liberties with a minor child.1 He claims several errors were committed by the trial court. Only one needs to be discussed. Appellant says the court erred in instructing in the language of the statute, telling the jury that one element of the offense was that the defendant "[took], or attempt[ed] to take" indecent liberties. Appellant says taking and attempting to take are two separate offenses and that this should have been made clear to the jury. He cites People v. Crane.2 But, in the first place, no objection was made in the trial court to the instruction. And, in the second place, the penalty under the statute for an attempt is the same as that for a taking, even if the two are regarded as separate offenses. The sentence given appellant was well within the statutory prescription. Thus no substantial right seems to have been affected in any realistic sense, even if the instruction was erroneous.3 In the third place, the evidence of guilt in this case was overwhelming.

2

Affirmed.

Notes:

1

62 Stat. 347 (1948), D.C.Code, § 22-3501 (a) (1961 ed.)

2

302 Ill. 217, 134 N.E. 99 (1922)

3

McQuaid v. United States, 90 U.S.App. D.C. 59, 193 F.2d 696 (D.C.Cir. 1951)