Atkinson v. United States, 7634.

Citation322 A.2d 587
Decision Date10 July 1974
Docket NumberNo. 7634.,7634.
PartiesReginald W. ATKINSON, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Michael J. McCarthy, Washington, D. C., appointed by this court, for appellant.

James N. Owens, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst., U. S. Atty., were on the brief, for appellee.

Before FICKLING and NEBEKER, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:

This appeal is from convictions for armed robbery,1 assault with a dangerous weapon,2 receiving stolen property,3 and carrying a pistol without a license.4 The sentences were concurrent; the longest, 6-18 years, was imposed on the armed robbery count. Appellant assigns as error (1) the court's supplemental instruction to the jury on aiding and abetting, and (2) the denial of his motion for a judgment of acquittal on the receiving stolen property count.

The testimony at trial established that on the evening of January 26, 1973, a cashier at a local drugstore was robbed at gunpoint by two men. Appellant was identified as the possessor of the weapon. His companion, who took the money from the clerk, was never apprehended. As the robbers left the store a plainclothes security officer, who was joined by two officers of the Metropolitan Police Department, pursued them and, after a short chase punctuated by exchanges of gunfire, appellant was apprehended. During the chase appellant was observed to throw an object into nearby bushes. Recovered from the bushes was a gun and, from appellant's clutched hand, $6.00 in cash.

At the close of the evidence, the jury was instructed as to the elements of robbery, armed robbery, assault with a dangerous weapon, receiving stolen goods, and carrying a pistol without a license. The prosecution did not request an instruction on aiding and abetting and the trial judge did not give, sua sponte, such an instruction. Counsel, both for the government and for appellant, indicated satisfaction with the court's instructions.

After deliberating several hours, the foreman of the jury sent to the court a note which read:

First Count. Does it matter that Mr. Atkinson [appellant] did not receive the money from Susan Fisher?

                                 Foreman
                                 Robert R. Hardy
                

The court, after discussing the contents of the note with counsel, re-instructed the jury on the elements of armed robbery and then gave, notwithstanding objection by appellant's counsel, a supplemental instruction on aiding and abetting. Two hours later the jury returned its verdict.

It is well established that the feasibility and scope of any re-instruction of a jury is a matter within the discretion of the trial judge. United States v. Wharton, 139 U.S.App.D.C. 293, 296 n. 9, 433 F. 2d 451, 454 n. 9 (1970); Mendelson v. United States, 61 App.D.C. 127, 129, 58 F.2d 532, 534 (1932). Appellant contends, however, that because — in the case at bar — the jury had commenced its deliberations, the court abused its discretion in giving the supplemental aiding and abetting instruction. We disagree.

The note from the jury clearly indicated the need for further instruction. By coupling a re-instruction on the elements of armed robbery with the supplemental aiding and abetting instruction, the court minimized the possibility of further confusion in the minds of the jurors as they continued their deliberations. Certainly, such instructions were preferable to a general deadlock instruction. See Winters v. United States, D.C.App., 317 A.2d 530 (1974). In any event, appellant made no request for permission to present additional argument to the jury on the matters covered by the supplemental instruction. Cf. Martin v. State, 236 Ark. 409, 366 S.W.2d 281 (1963); Jackson v. State, 216 Ark. 341, 225 S.W.2d 522 (1949).

Appellant says, however, that aiding and abetting the commission of the armed robbery was a lesser included offense and that the supplemental instruction, in effect, permitted the government to change the theory of the prosecution after the jury had commenced its deliberations. No authority has been cited and we have found none which supports the proposition that an aider and abettor of an armed robbery is guilty of a lesser included offense. To the contrary, D.C.Code 1973, § 22-105 provides — in language crystal clear — that any person aiding and abetting the principal offender shall be charged as a principal. See in this connection Ladrey v. United States, 81 U.S.App.D.C. 127, 155 F.2d 417 (1946); In re Reeder, D.C.App., 264 A.2d 893 (1970).

Appellant's other assignment of error, viz., the denial of his motion for a judgment of acquittal as to the charge of receiving stolen property, is more troublesome. Though reversal of the conviction under this count will not affect the greater sentence of 6-18 years for armed robbery, we nonetheless consider the point. The indictment charged as to ownership that the stolen property, a pistol, was the property "of William J. Burns International Detective Agency, Inc., a body corporate. . . ."

At trial the following colloquy took place between the prosecutor and the Burns security officer who had custody of the pistol when it was stolen:

BY THE PROSECUTOR:

Q. Mr. Edwards, I'm showing you a pistol that's been marked as Government's Exhibit Number 1 for identification, and ask you to examine that and tell me if you recognize that pistol?

A. Yes, sir, I do, sir. This is the one that was...

To continue reading

Request your trial
9 cases
  • Murchison v. United States, 83-1386.
    • United States
    • D.C. Court of Appeals
    • 27 Diciembre 1984
    ...v. United States, 471 A.2d 1022, 1024 (D.C.1984); Murray v. District of Columbia, 358 A.2d 651, 653 (D.C.1976); Atkinson v. United States, 322 A.2d 587, 588 (D.C.1974); United States v. Bolden, 169 U.S.App.D.C. 60, 67, 514 F.2d 1301, 1308 (1975). Our review of the trial court's actions with......
  • Wright v. US
    • United States
    • D.C. Court of Appeals
    • 16 Febrero 1990
    ...during the two burglaries was "not his own." Gurley v. United States, 308 A.2d 785 (D.C.1973). His reliance on Atkinson v. United States, 322 A.2d 587 (D.C.1974), is misplaced since that case did not hold that specific proof of corporate ownership is required, such as character, certificate......
  • Gale v. State, 80-96.
    • United States
    • D.C. Court of Appeals
    • 19 Marzo 1981
    ...sufficiency of the evidence." The appellant in Atkinson, however, had not expressly raised the sufficiency claim on direct appeal, see 322 A.2d 587 (1974); thus, in response to the collateral attack we felt constrained to address the merits of that claim even while making the above statemen......
  • Moss v. United States, 9519.
    • United States
    • D.C. Court of Appeals
    • 2 Febrero 1977
    ...we have set aside a conviction where the record gave no real indication as to the legal nature of the complainant, Atkinson v. United States, D.C.App., 322 A.2d 587 (1974), we agree with the many jurisdictions in which sufficient corporate ownership of the property in question is found wher......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT