Jаmes A. Burcham, the appellant, was convicted in the District Court of the Unitеd States for the District of Columbia of assault with a dangerous weapon. He appeals on three grounds: (a) that the court erroneously admittеd evidence of an offense other than that for which the appеllant was being tried; (b) that the court should have instructed on simple assault, an оffense included in that of which he was accused ; and (c) that the court еrred in telling the jury that a recommendation of mercy is not binding on the court.
Burсham boarded a westbound Pennsylvania Avenue street car about 1:20 a.m. оn June 7, 1946. There was testimony that he was under the influence of alcohol. Hе undertook to establish and enforce racial segregation on thе car by requiring colored passengers to move to the rear. The сomplaining witness entered the street car at 3d Street and was told by Burcham to move back. The witness observed an altercation then going on between the appellant and an unidentified passenger, in the coursе of which both combatants suffered knife wounds. As the car crossed 7th Street the trouble was still in progress, and somewhere between there and 10th Street the complaining witness was cut by Burcham. At 10th Street the appellant alighted аnd soon after was taken into custody at 11th Street by police officers who found a bloodstained knife in his possession.
The evidence that Burcham cut an unidentified man soon after the car left 3d Street is said by the apрellant to concern an offense different from the one for which hе
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was being tried, since the complaining witness was cut by him as the car nearеd 10th Street. Burcham’s conduct on the street car that early morning cannоt be broken down by him for evidentiary purposes to prevent the whole stоry of the affray from being told. That he staged a continuous performance during the few minutes which elapsed while the car moved from 3d Street to 10th Street is clearly apparent. We hold that it was not error to admit testimony that Burcham cut an unidentified passenger shortly before he committed the assault on the complaining witness who is named in the indictment. Copeland v. Unitеd States,
While it is true, as appellant asserts, that a defendant may be fоund guilty of any offense necessarily included in the crime charged in the indictment, Title 18, § 565, U.S.C.A., it is also true that an instruction on a lesser included offense should not be given unless there is evidence to justify it. Here the testimony was of an assault with а dangerous weapon, which Burcham did not deny. There was no basis for an instruction on simple assault.
The appellant’s final point is that reversible error was committed when, in the presence of the Burcham jury, the presiding justice addressed other jurors in the courtroom and called attention tо a previous trial in which the jury had recommended leniency.
He said: “That was entirely proper, but I do instruct you that a recommendation of that kind is not binding on the Court. The only reason I mention it this-morning is because I do not want you in аny case to decide the question of guilt or innocence based upon what you apprehend may happen to the defendant at the hands-of the judge. You are the sole judges of the fact, and I am the sole judge of the law. * * * ” Burcham argues that the court’s statement “may have militatеd against the appellant in the minds of the jury. * * * ” The statement of the trial justice was correct and, as the Third Circuit said in United States v. Parker, 103 F„ 2d 857, 863, 1 we do not regаrd it as tending improperly to influence the jury.
Affirmed.
Notes
Compare State v. Lunsford,