Carroll W. Stewart v. United States

324 F.2d 443, 116 U.S. App. D.C. 411, 1963 U.S. App. LEXIS 4033

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 10, 1963
• Docket: 17861
• Status: Published

Opinion

PER CURIAM.

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.

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.

Affirmed.