478 F2d 997 United States v. Hutchinson
478 F.2d 997
156 U.S.App.D.C. 87
UNITED STATES of America
Joe HUTCHINSON, Appellant.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 26, 1973.
Decided May 11, 1973.
George H. Shapiro, Washington, D. C., with whom Gary M. Epstein, Washington, D. C. (both appointed by this court), was on the brief, for appellant.
David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before WRIGHT and ROBB, Circuit Judges, and DAVIES*, Senior District Judge.
Appellant was convicted of two counts of assault with intent to commit rape. 22 D.C.Code Sec. 501 (Supp. V 1972). Chapter 28, Title 22, District of Columbia Code reads:
Sec. 22-2801. DEFINITION AND PENALTY.
Whoever has carnal knowledge of a female forcibly and against her will or whoever carnally knows and abuses a female child under sixteen years of age, shall be imprisoned for any term of years or for life.
The victims in the two counts with which appellant was charged were females over 16 years of age. Instead of charging under the first part of 22 D.C. Code Sec. 2801 (Supp. V 1972): "Whoever has carnal knowledge of a female forcibly and against her will," the counts in the indictment against appellant charged under the second part relating to carnally knowing and abusing a female child.1 Thus the counts of the indictment are brought under the wrong part of the statute. Since there is no crime of assault with intent to carnally know and abuse a female 16 years of age or older, appellant's conviction must be
Of the United States District Court for the District of North Dakota, sitting by designation pursuant to 28 U.S.C. Sec. 294 (d) (1970)
The two counts of the indictment read:
On or about February 12, 1972, within the District of Columbia, JOE HUTCHINSON assaulted [the first victim], a female person, with intent to carnally know and abuse the said [first victim].
On or about February 12, 1972, within the District of Columbia, JOE HUTCHINSON assaulted [the second victim], a female person, with intent to carnally know and abuse the said [second victim].