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301 F.2d 531

Docket No. 16729.

Britton v. United States

District of Columbia Circuit Court of Appeals

Argued March 15, 1962.

Decided April 5, 1962.

District of Columbia Circuit Court of Appeals · decided 1962-04-05

2 counsel of record

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1962-04-05

How this case has been cited

Cited by 12 later decisions — most recently July 1993

10 federal appellate · 2 state decisions

701962197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Mr. Joseph A. McMenamin, Washington, D. C. (appointed by this court), for appellant.

¶2Mr. John R. Schmertz, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson and Luke C. Moore, Asst. U. S. Attys., were on the brief, for appellee.

¶3Before Fahy, Washington, and Danaher, Circuit Judges.

¶4PER CURIAM.

¶5Appellant was indicted for and convicted of the crime of housebreaking, D.C.Code § 22-1801 (1961). On appeal, his court-appointed counsel (not of counsel in the District Court), urges that the trial court erroneously declined to give an instruction on lesser included offenses. He contends that the evidence would have sustained a conviction for unlawful entry, see D.C.Code § 22-3102 (1961), carrying a much lower penalty.

¶6However, appellant’s trial counsel waited until the conclusion of the court’s charge, which carefully outlined the law of housebreaking, and then asked for an instruction “on lesser offenses.” Under all the circumstances, we think the trial court’s refusal of the request was not reversible error. There was no specification of any particular lesser offenses which might be covered by the indictment and the evidence. Counsel may have had in mind forcible entry, see D.C.Code § 22-3101 (1961), or unlawful entry, see § 22-3102, or some other offense conceivably within the scope of the testimony. But the indictment was for housebreaking; the evidence was sufficient to establish housebreaking; and there was no showing to the judge that any other specific offense was “necessarily included,” see Fed.R.Crim.P. 31 (c), 18 U.S.C.A., within the crime of housebreaking, as charged and proved. Such a showing may perhaps be unnecessary in situations where a lesser offense is plainly and inevitably included within *532a greater. But that was not true here.1 On the contrary, this would appear to be the sort of case in which Rule 30 of the Federal Rules of Criminal Procedure should be given application. That rule provides, in part:

“At the close of the evidence … any party may file written requests that the court instruct the jury on the law as set forth in the requests. … No party may assign as error any … omission [from the charge] unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (Emphasis supplied.)

¶7The judgment of conviction will accordingly be

¶8Affirmed.

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