Opinion
No. 17245.
Argued November 15, 1962.
Decided December 20, 1962. Petition for Rehearing En Banc Denied February 26, 1963. Certiorari Denied June 17, 1963. See 83 S.Ct. 1892.
Mr. Eugene I. Lambert, Washington, D.C. (appointed by this court), for appellant.
Mr. William C. Weitzel, Jr., Asst. U.S. Atty., with whom Mr. David C. Acheson, U.S. Atty., and Messrs. Frank Q. Nebeker and Joel D. Blackwell, Asst. U.S. Attys., were on the brief, for appellee.
Before EDGERTON, Circuit Judge, PRETTYMAN, Senior Circuit Judge, and WASHINGTON, Circuit Judge.
Appellant was indicted for rape and convicted of assault with intent to commit rape. Relying upon the first Green case he says the trial judge erred in giving an instruction on the lesser offense. But Green is inapplicable for two reasons: (1) There was no request for the instruction in that case; here a request was made by defense counsel. (2) In that case this court held that the record reflected no evidence which would establish the elements of the lesser offense without proving the greater. No such question arises in the present case. The legal definition of the greater offense clearly includes the lesser. The evidence here tended to prove a series of events, part of which, if believed, would establish the lesser offense but not the greater. Thus the instruction was proper. We find no error.
Green v. United States, 95 U.S.App.D.C. 45, 218 F.2d 856 (D.C. Cir. 1955).
Affirmed.