320 F.2d 798 | D.C. Cir. | 1963
Concurrence Opinion
(concurring).
Although appellant purports to be attacking the propriety of charging the jury on lesser included offenses, I agree with my brethren that he is in effect attempting an untimely attack against the indictment for duplicity. Whether made against the indictment or the charge, the attack is levelled against the possibility that the conviction was based on facts not found by the grand jury.
But I reject any suggestion that evidence at the trial may be considered in determining whether the grand jury
“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted .him.”
In Spencer v. United States, 73 App.D.C. 98, 116 F.2d 801 (1940), a conviction of robbery was affirmed on facts which did not show an assault. The indictment in the Spencer case charged robbery “against resistance, and by putting in fear, and by sudden and stealthy seizure and snatching * * The practice of the United States Attorney, followed in the present case, still seems to be to charge all methods of robbery in robbery indictments regardless of the nature of the evidence presented to the grand jury.
Lead Opinion
Appellant, charged with robbery,
The District robbery statute denounces several kinds of acts taking the property of another, at least one of which apparently does not require an assault.
In effect what appellant is attempting to do here, through his very competent court-appointed counsel, is to attack the indictment for duplicity. The attack, however, comes too late. See Rule 12(b) (2), F.R.Cr.P.
Affirmed.
. 22 D.C.Code § 2001 provides: “Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than six months nor more than fifteen years.”
. Pope v. Huff, 79 U.S.App.D.C. 18, 19, 141 F.2d 727, 728 (1944).
. See Notes 1 and 2. See also Spencer v. United States, 73 App.D.C. 98, 116 F.2d 801 (1940).
. See 4 Wharton’s Criminal Law and Procedure § 1798.