In а joint trial, appellants were convicted by a jury of felony murder, armed robbery, and assault with a deadly weapon. They were all denied Youth Corrections Act 1 sentences, and received twenty years to life on the murder counts, and lesser, concurrent, sentences for the other convictions. 2 We affirm the fеlony murder and armed robbery convictions, and vacate the assault with a deadly weapon convictions. 3 We also reverse Stevens’ sentence, and hold in abeyance the contentions of Branic and Baskerville with respect to the trial court’s refusal to impose youth sentences.
I
The evidencе showed that appellants entered a jewelry store, and while Bas-kerville stood guard, Branic and Stevens forced both proprietors — one of whom was the seventy-five year old father of the other — into a back room. Both men were handcuffed and instructed to lie on the floor. The younger man asked if his father could sit on a chair because of his age, but was told to “shut up.” Adhesive tape was then wrapped around the victims’ months. The son was still able to speak, аnd tried, in Hungarian, to calm his father. In response, one of the robbers removed the tape from the son’s mouth, stuffed the son’s handkerchief in his mouth, and replaced the tape. Appellants then took approximately $4000 in merchandise and cash.
Shortly after the robbers fled, the younger proprietor ran to a nеighboring store for help. He returned to assist his father, but was unable to remove his handcuffs. The police arrived and also attempted unsuccessfully to remove the father’s cuffs. During this effort the father became pale and began to perspire. He was pronounced dead on arrival at the hospital.
Appellant’s primary argument is that the trial court’s instructions on felony murder were deficient in so far as they did not require the jury to find that death was a foreseeable result of appellants’ behavior. Relying on People v. Stamp,
The D.C.Code felony murder statute requires that a homicide committed during а felony be done “purposely” *1069 unless the felony is “arson, rape, mayhem, robbery, or kidnapping,” in which case the homicide may be committed “without purpоse so to do.” 22 D.C.Code § 2401. We have previously 4 indicated that by eliminating the element of “purpose” with respect to these five serious felonies, Congress intеnded to apply the common law felony murder rule to them 5 — that is, that a homicide committed in the course of their perpetration is murder because thе “malice” required for murder can be implied from the commission of the felony. 6 The doctrine of implied malice obviates the need for the government to prove that death was “foreseеable” when the homicide occurs during any of these five specified felonies. 7 Accordingly, nothing in the court’s instruction warrants reversal of appellants’ сonvictions.
Appellants Branic and Stevens challenge the admission into evidence of their line-up identifications. We have viewed the pictures of thе line-up, and find that the line-up was not suggestive. Relying on Spriggs v. Wilson,
Baskerville attacks a tentative ruling by the trial court to the effect that if he testified, the prosecutor might be allowed to impeach him with a prior statement he gave to the police in which he denied participation in the instant offense, admitted committing another robbery, and claimed that Branic and Stevens told him that they had cоmmitted the instant offense. 9 The trial court diligently tried to keep out evidence of the “other” robbery because of its potentially prejudicial impaсt, but felt that if Baskerville testified the prior statement might be admissible because the two offenses were so highly related. 10 We need not decide — solely on the bаsis of speculation as to what appellant might have said — whether, or to what extent, the prior statement could be admitted since the court’s tentative ruling did not influence appellant’s decision not to testify. Counsel for Baskerville, at the urging of co-counsel and appellant himself, advised the court that “[i]n view of all the circumstances, it is the consensus . . . that Mr. Baskerville will not take the stand.” So far as the record indicates these “circumstances” *1070 did not include the court’s ruling that the prior statement might be admissible for impeachment. 11
II
Appellant Stevens — who was twenty-one years old at the time of the jury verdict — was not considered for youth sentencing because he was twenty-two at the time' he was sentenced. The Youth Act defines a “youth offender” as “a person under the age of twenty-two years at the time of conviction,” and defines “conviction” as “the
judgment
on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contend-ere.” 18 U.S.C. § 5006(e), (h) (emphasis supplied). However, for the reasons given by Judge Youngdahl in United States v. Carter,
Branic and Baskerville claim that the trial court’s reasons for denying youth treatment were insufficient. The Supreme Court has granted certiorari in Dorszynski v. United States,
So ordered.
Notes
. 18 U.S.C. § 5005 et seq.
. On the armed robberies the sentences were ten to thirty years, and on the assaults they were three to ten years.
. Assault with a deadly weapon is a lesser included offense of armed robbery. United States v. Johnson,
.
See, e. g.,
Carter v. United States,
.
See generally
Coleman v. United States,
.
See generally
United States v. Greene,
. Compare American Law Institute, Model Penal Code § 201.2, and tentative draft # 9, comment 4 to § 201.2 (1962).
. Appellants were viewed by witnesses to the instant robbery as well as witnеsses to other robberies.
See
Adams v. United States,
. Appellant also claims that the court erred in failing to “offer to sever Baskerville’s trial from those of his co-defendants.” On the сontrary, the court explicitly indicated that it was “very seriously considering this question of severance.” Its consideration terminated, of course, when Baskerville declined to testify.
. The robberies, both of jewelry stores, occurred one day apart, and were committed with the same modi operandi, allegedly by the same three dеfendants. The keys to the handcuffs used in the instant robbery were found in Baskerville’s car, which in turn, had been identified as the vehicle that sped away from the other robbery. Also found in Bаskerville’s car was Stevens’ fingerprint.
. The circumstances discussed by counsel were (1) that in explaining the presence of the handcuffs, Baskerville would “almost hav[e] to refer to [the other robbery] which I don’t want,” and (2) “[t]hen there is always the risk of [sic] in the course of examination, unwittingly Mr. Baskerville would mention something where he would open the door, although slightly, he would open it ajar to permit the intrusion of the Government on an area that heretofore been [sic] held out of the province of cross-examination by the Court’s ruling.”
.
See
United States v. Coefield,