Johnson v. United States, 19159.
| Decision Date | 01 September 1965 |
| Docket Number | No. 19159.,19159. |
| Citation | 122 US App. DC 1,350 F.2d 784 |
| Parties | James W. JOHNSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Patrick H. Corcoran, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, submitted on the brief for appellee.
Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
On January 16, 1956, a two-count indictment was filed in the District Court charging appellant with rape1 and robbery.2 After a plea of not guilty, appellant was tried and found guilty of assault with intent to commit rape and robbery. This appeal is from the District Court's denial without hearing of appellant's motion, filed pursuant to 28 U.S.C. § 2255, to set aside this 1956 conviction.
Appellant's first contention is that he was convicted of a crime, assault with intent to rape, for which he was not indicted. Assuming for purposes of this appeal that this contention states sufficient grounds for collateral attack,3 appellant cannot prevail on this point for assault with intent to rape is a lesser included offense in the charge of rape. United States v. Lovely, E.D.S.C., 77 F. Supp. 619, 621, reversed on other grounds, 4 Cir., 169 F.2d 386 (1948); People v. Kimball, 122 Cal.App.2d 211, 264 P.2d 582 (1953).
On appeal, appellant makes certain allegations, not made below, which might form the basis for a successful claim of ineffective assistance of counsel. Since the issue was not presented below, we do not reach the question on this appeal. We do note, however, that our judgment here is without prejudice to appellant's raising the issue in a later motion by proper and sufficient pleadings in the District Court.
Affirmed.
To continue reading
Request your trial
-
State v. Gustafson
...State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957); Daniel v. Maxwell, 176 Ohio St. 207, 198 N.E.2d 657 (1964); Johnson v. United States, 122 U.S.App.D.C. 1, 350 F.2d 784 (1965). The judgment is * Fort, J., did not participate in the decision of this case. ...
-
BARGDON v. U.S., 92-CF-648
...1202, 1204 (D.C. 1989). This is not the case here. 3. Brown v. United States, 576 A.2d 731, 734 (D.C. 1990); Johnson v. United States, 122 U.S.App.D.C. 1, 350 F.2d 784 (1965). 4. In fact, appellant's counsel made this precise point in closing argument. Even before that, in arguing for a jud......
-
Brown v. US, 88-1553.
...137 U.S.App.D.C. 60, 420 F.2d 628 (1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431; see also Johnson v. United States, 122 U.S.App.D.C. 1, 350 F.2d 784 (1965) (assault with intent to commit rape is a lesser-included offense of common law rape). Brown was also convicted of ......
-
Brake v. United States
...the courts of this jurisdiction have implicitly, and later explicitly, rejected that proposition. In Johnson v. United States, 122 U.S.App.D.C. 1, 350 F.2d 784 (1965) (per curiam), a conviction for assault with intent to rape was affirmed on the ground that such conduct was a lesser include......