344 F2d 566 Lee v. United States

344 F.2d 566

120 U.S.App.D.C. 181

Henry E. LEE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18803.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 15, 1965.
Decided March 11, 1965.

Mr. Bernard Margolius (appointed by this court), Washington, D.C., for appellant.

Mr. William C. Weitzel, Jr., Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit judges.

PER CURIAM:

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1

Appellant was convicted of assault upon a Metropolitan Police officer. 22 D.C.CODE 505(a) (1961). We have carefully studied the points raised on appeal and find no basis for reversing the conviction. We note, however, that the jury asked if it could recommend mercy and was advised by the trial judge that it could not. The inference is plain that this desire on the part of the jury grew out of the emotional situation in which the assault occurred. The appellant and others were present at the D.C. General Hospital. They became upset by what they thought was inattention to the relative of one of them who had been injured in an accident. The police were called and the conduct which constituted the crime resulted.

2

In these circumstances, in view of appellant's age and lack of prior criminal record, and especially the apparent feeling of the jury that the punishment should be tempered with mercy, the District Court may wish to reconsider the sentence imposed. Rule 35, FED.R.CRIM.P. See Kaplan v. United States, 5 Cir., 241 F.2d 521, 523, cert. denied, 354 U.S. 941, 77 S.Ct. 1406, 1 L.Ed.2d 1539 (1957). Compare Scarbeck v. United States, 115 U.S.App.D.C. 135, 158, 317 F.2d 546, 569, cert. denied, 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077, rehearing denied, 375 U.S. 874, 84 S.Ct. 35, 11 L.Ed.2d 105 (1963).

3

Affirmed.