Opinion
No. 20001.
Argued October 18, 1966.
Decided October 28, 1966. Petition for Rehearing en banc Denied February 16, 1967.
Mr. Martin S. Thaler (appointed by this court), with whom Mr. Dennis T. Koromzay, Washington, D.C., was on the brief, for appellant.
Mrs. Lee B. Anderson, Atty., Dept. of Justice, with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee. Mr. Dean W. Determan, Asst. U.S. Atty. at the time the record was filed, also entered an appearance for appellee.
Before FAHY, DANAHER and LEVENTHAL, Circuit Judges.
Appellant, on strong evidence, was convicted of housebreaking in violation of D.C. Code § 22-1801. He asserts error in the instructions, urging that under Levine v. United States, 104 U.S.App. D.C. 281, 261 F.2d 747, a special instruction on his theory of the case was required. The factual situation is sufficiently different to remove the case from any controlling effect of Levine. As to other aspects of the instructions, defense counsel, in response to inquiry by the court, expressed satisfaction with those given, in view of which, considering the case over-all, appellant may not require us to exercise the discretion available under Rule 52(b), Fed.R.Crim.P.
As to the long delay in the availability to counsel of the trial transcript in preparing the appeal our affirmance cannot be attributed to this delay; and we are not called upon to consider, were we to reverse for a new trial, the effect of such delay on the right to a speedy trial.
We have considered other assigned errors and also find there no cause for reversal.
Affirmed.