Joseph M. Joyner v. United States

320 F.2d 798, 116 U.S. App. D.C. 76, 1963 U.S. App. LEXIS 4907

Opinions

PER CURIAM.

Appellant, charged with robbery,¹ was convicted of assault with intent to commit robbery. Since “robbery, under the District statute, is possible without assault,”² he maintains that assault with intent to commit robbery is not “an offense necessarily included in” a charge of robbery. Rule 31(c), F.R.Cr.P.

The District robbery statute denounces several kinds of acts taking the property of another, at least one of which apparently does not require an assault.³ Appellant was charged in the full language of the statute, substituting, of course, the conjunctive and for the disjunctive or where necessary.⁴ Thus, under the indictment, assault may not have been a necessarily included lesser offense as'to all kinds of takings charged. But on the facts as developed during the trial, assault with intent to rob was clearly proved. Since the indictment did charge a taking by force and violence, appellant’s conviction of the lesser included offense of assault with intent to rob was permissible. Rule 31(c), F.R.Cr.P.

In effect what appellant is attempting to do here, through his very competent court-appointed counsel, is to attack the indictment for duplicity. The attack, however, comes too late. See Rule 12(b) (2), F.R.Cr.P.

Affirmed.

Footnotes

1

. 22 D.C.Code § 2001 provides: “Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than six months nor more than fifteen years.”

2

. Pope v. Huff, 79 U.S.App.D.C. 18, 19, 141 F.2d 727, 728 (1944).

3

. See Notes 1 and 2. See also Spencer v. United States, 73 App.D.C. 98, 116 F.2d 801 (1940).

4

. See 4 Wharton’s Criminal Law and Procedure § 1798.