Larson v. United States
| Decision Date | 14 November 1961 |
| Docket Number | No. 6790.,6790. |
| Parties | Horace Marion LARSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William R. Young, Englewood, for appellant.
James P. McGruder, Denver, Colo., for appellee.
Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.
This is an appeal from a judgment imposed pursuant to a jury verdict finding the defendant-appellant guilty, as charged, of stealing government property of a value in excess of $100.00.
The sole ground of appeal is that the form provided on which to enter the verdict and the instructions of the trial court did not afford the jury an opportunity to find the appellant guilty of a lesser included offense in the event they believed, in accordance with evidence presented by appellant, that the stolen property was valued at less than $100.00.
18 U.S.C.A. § 661 makes unlawful the theft of personal property within the special maritime and territorial jurisdiction of the United States and provides that if the property taken is of a value exceeding $100.00, or is taken from the person of another, then the penalty may be a fine of not more than $5,000.00 or imprisonment for not more than 5 years, or both, and, in all other cases, the penalty may be a fine of not more than $1,000.00 or imprisonment for not more than 1 year, or both.
The trial court instructed the jury that the crime charged contained two elements — that of the theft, and whether the property, at the time it was taken, was of a value exceeding $100.00 — and that if the jury entertained a reasonable doubt as to either of these elements, then a verdict of not guilty should be returned. The forms provided the jury on which to enter their verdict were simply "guilty as charged" and "not guilty as charged" and no instruction on a lesser included offense was given.
Rule 31(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., states that "(T)he defendant may be found guilty of an offense necessarily included in the offense charged * *." To be "necessarily included" within the meaning of the Rule, the lesser offense must be such that it is impossible to commit the greater without having first committed the lesser. Giles v. United States (9th Cir.) 144 F.2d 860; James v. United States (9th Cir.) 238 F.2d 681, 16 Alaska 513. And, "* * * where some of the elements of the crime charged themselves constitute a lesser crime * * *," and there is...
To continue reading
Request your trial
-
U.S. v. Swingler
...v. United States, 416 F.2d 1155, 1157 (9th Cir.1969); Waker v. United States, 344 F.2d 795, 798 (1st Cir.1965); Larson v. United States, 296 F.2d 80, 81 (10th Cir.1961). To convict a defendant of conspiracy to distribute amphetamine, the government need only prove one overt act made by the ......
-
U.S. v. Horn
...committing the suggested lesser offense does an actual lesser included offense exist. See Swingler, 758 F.2d at 499; Larson v. United States, 296 F.2d 80, 81 (10th Cir.1961). We reasoned that since only one overt act need be committed for a conspiracy to distribute amphetamine, and that act......
-
U.S. v. Peters
...evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater"); Larson v. United States, 296 F.2d 80, 81 (10th Cir.1961) ("where ... there is proof to support a lessor [sic] offense necessarily included in the offense charged, and the defend......
-
State v. Thompson
...considered a lesser included of another unless it is necessarily so under the statutory definition of the crime. Larson v. United States, 296 F.2d 80, 81 (10th Cir. 1961); Little v. State, 303 A.2d 456 (Me. 1973). The definition of lesser included offenses announced in Little is "that to be......