Defendant [appellant] was charged, in a two-count indictment, of violation of the Miller Act (taking indecent liberties with a child), 1 and carnal knowledge. 2 *632 The trial judge found the evidence insufficient to support the charge of carnal knowledge and instructed the jury that, on the second count, it could find the defendant guilty only of the crime of assault with intent to commit carnal knowledge. Defendant was found guilty on the Miller Act charge, and, as well, guilty of assault with intent to commit carnal knowledge. He was given concurrent sentences within the penalties prescribed for the two offenses of which he was convicted. He appeals.
At the opening of the trial in the District Court, defendant’s counsel announced that the defenses would be, first, that no crime was committed by the defendant, and secondly, that, if the defendant did commit the crime, he was not guilty by reason of insanity. The trial judge called counsel to the bench and stated that defense counsel would have to take one position or the other in view of the fact that the two defenses were inconsistent. This was erroneous for two reasons: (1) There is no logical inconsistency between the two defenses; they come to this, that the defendant did not do the acts charged, and that he would not be responsible for them if he did them. (2) In any: event, the Government does not seriously contend, and it cannot, that inconsistent defenses may not be interposed in a criminal case. Cf. Goforth v. United States, 1959,
Other matters have been assigned as error, most of which may not arise upon retrial; however, we think that since one of the situations complained of is likely to recur on retrial it is proper to discuss it.
As above stated, the indictment charged the defendant with violation of the Miller Act in the first count, and with carnal knowledge, in the second count. At the close of the Government’s case, the court granted a partial judgment of not guilty under the second count, stating there was no evidence to support the carnal knowledge charge, but submitted to the jury the lesser included offense of assault with intent to commit carnal knowledge. We think this was correct.
We believe, however, that under authority of Younger v. United States,
The Government urges that, in view of the fact that the court imposed concurrent sentences and that the punishment imposed was not in excess of that permissible under either count, we should not remand the case but merely vacate and set aside the sentence under the Miller Act count. We think, however, that the practice set forth in Younger should have been followed and, on retrial, such should be the procedure.
So far as the admission in evidence of the hospital record of the medical examination of Patricia Parham is concerned, it is unlikely that this matter will arise in a subsequent trial. The examining physician was not called as a witness, the court being advised that the witness was out of the jurisdiction and unavailable. We think we should add, however, that, if the matter arises under *633 the same circumstances, we would be compelled to hold the evidence inadmissible.
Reversed and remanded.