Summary
In Stewart we declined to reverse the trial court for its failure to instruct the jury on the charge of unlawful entry as a lesser included offense of housebreaking.
Summary of this case from United States v. WhitakerOpinion
No. 17861.
Argued September 17, 1963.
Decided October 10, 1963.
Mr. David Booth Beers, Washington, D.C. (appointed by this court), for appellant.
Mr. Robert D. Devlin, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U.S. Attys., were on the brief, for appellee.
Before DANAHER, WRIGHT and McGOWAN, Circuit Judges.
Upon the appeal of a conviction for housebreaking and larceny, reversal is sought solely by reason of an alleged error of the trial judge in refusing, upon request, to charge that the jury might find appellant guilty of unlawful entry as a lesser offense necessarily included in that of housebreaking. Rule 31(c), Fed.R.Crim.P.
While in some circumstances, as here, the elements of unlawful entry (D.C. Code § 22-3102 (1961)) are comprehended within those of housebreaking (D.C. Code § 22-1801 (1961)), the latter requires also a finding of larcenous intent. Since the jury found the appellant guilty of larceny as well as housebreaking, it must have determined that larcenous intent was present in this case. Under these circumstances we need not pursue the issue of whether the failure to give the requested charge was error, since, even if it be so regarded, it was harmless in its impact upon the jury's disposition of the crimes charged in the indictment.
Affirmed.