United States v. Anthony Joseph Agofsky

Fourth Circuit

United States v. Anthony Joseph Agofsky

411 F.2d 1013, 1969 U.S. App. LEXIS 11806

CourtCourt of Appeals for the Fourth Circuit

DecidedJune 23, 1969

Docket13182

StatusPublished

Cited by2 cases

This text of 411 F.2d 1013 (United States v. Anthony Joseph Agofsky) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Anthony Joseph Agofsky, 411 F.2d 1013, 1969 U.S. App. LEXIS 11806 (4th Cir. 1969).

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Opinion

PER CURIAM:

Anthony Joseph Agofsky, a federal prisoner, was convicted of assault with a dangerous weapon without just cause or excuse in violation of 18 U.S.C. § 113(c). He contends that the court should have charged the jury that he could be convicted of lesser included offenses, e. g., assault by striking, beating, or wounding, 18 U.S.C. § 113(d), or simple assault, 18 U.S.C. § 113(e).

The evidence disclosed that Agofsky, in the nighttime, stabbed a fellow prisoner with a knife while the victim was asleep in his bunk. There is no contention that a dangerous weapon was not used. As a matter of law, Agofsky did not have just cause or excuse to stab a sleeping victim who offered him no imminent harm. “A lesser-included offense instruction is only proper where the charged greater offense

*1014 requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Therefore, it was not incumbent upon the district judge to instruct the jury that a verdict of guilty could be returned on the lesser included offenses. Parker v. United States, 123 U.S.App. D.C. 343, 359 F.2d 1009, 1013 (1966); United States v. Strassman, 241 F.2d 784, 786 (2d Cir. 1957).

Agofsky’s other assignments of error are without merit. His conviction is affirmed.

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PER CURIAM:

Anthony Joseph Agofsky, a federal prisoner, was convicted of assault with a dangerous weapon without just cause or excuse in violation of 18 U.S.C. § 113(c). He contends that the court should have charged the jury that he could be convicted of lesser included offenses, e. g., assault by striking, beating, or wounding, 18 U.S.C. § 113(d), or simple assault, 18 U.S.C. § 113(e).

The evidence disclosed that Agofsky, in the nighttime, stabbed a fellow prisoner with a knife while the victim was asleep in his bunk. There is no contention that a dangerous weapon was not used. As a matter of law, Agofsky did not have just cause or excuse to stab a sleeping victim who offered him no imminent harm. “A lesser-included offense instruction is only proper where the charged greater offense

*1014 requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Therefore, it was not incumbent upon the district judge to instruct the jury that a verdict of guilty could be returned on the lesser included offenses. Parker v. United States, 123 U.S.App. D.C. 343, 359 F.2d 1009, 1013 (1966); United States v. Strassman, 241 F.2d 784, 786 (2d Cir. 1957).

Agofsky’s other assignments of error are without merit. His conviction is affirmed.

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411 F.2d 1013, 1969 U.S. App. LEXIS 11806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-anthony-joseph-agofsky-ca4-1969.

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