Elie Andrew Graves v. United States

318 F.2d 265, 115 U.S. App. D.C. 294, 1963 U.S. App. LEXIS 5557

Opinions

PER CURIAM.

The appeal is from a conviction of appellant of robbery, defined in 22 D.C. Code § 2901. At trial counsel for the defense requested the court to instruct the jury on the lesser included offense of larceny, which the court declined to do. In this court the United States Attorney commendably agrees that the failure so to instruct was error and moves for remand to the District Court with directions to hold a new trial, citing the intervening decision of this court in Young v. United States, 114 U.S.App.D.C. 42, 309 F.2d 662 (1963), and referring also to our intervening decision in Hunt v. United States, 115 U.S.App.D.C.-, 316 F.2d 652 (1963). Able counsel for appellant appointed by this court suggests that the remand should be for trial only of larceny; but we do not adopt this suggestion because in our view the evidence was sufficient to raise a jury issue as to robbery.

The motion of the United States is granted, the judgment is reversed, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.

It is so ordered.