Young v. United States

• Decision Date: 16 March 1961
• Docket Number: No. 16018.,16018.
• Parties: Samuel E. YOUNG, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 414, 288 F.2d 398 (1961)

Samuel E. YOUNG, Appellant, v. UNITED STATES of America, Appellee.

No. 16018.

United States Court of Appeals District of Columbia Circuit.

Argued January 9, 1961.

Decided March 16, 1961.

Mr. Forbes W. Blair, Washington, D. C. (appointed by this court) for appellant.

Mr. Donald S. Smith, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee.

Before PHILLIPS, Senior United States Circuit Judge for the Tenth Circuit,^* and BAZELON and WASHINGTON, Circuit Judges.

PHILLIPS, Circuit Judge.

In count one of a four-count indictment, Young and one Francis M. Thompson were charged with an assault on Eugene A. Duvall "with intent to commit the crime of robbery." In count two they were charged with "an assault on Eugene A. Duvall with a dangerous weapon, that is, a knife." Counts three and four charged offenses by Thompson only and are not here material. Count one did not name or identify the person or persons intended to be robbed.

A jury trial resulted in verdicts finding each defendant guilty on counts one and two. Young was sentenced to imprisonment for from three to nine years on each of such counts, the sentences to run concurrently, and has appealed.

The facts as shown by the evidence introduced by the Government are these. On December 13, 1959, at approximately 1:00 o'clock a. m., Washington police officers Duvall and Newville entered Jimmy's Bar and Grill¹ located at 1201-11th Street, N. W., Washington, D. C. The Grill was then owned by Mae Georganas. It had closed at 12 o'clock midnight, December 12th, 1959. The police officers had been assigned to the vicinity of the Grill, were on duty in plain clothes, and had gone to the Grill to protect the cash receipts of it and another grill owned by Mrs. Georganas, while they were being checked. At about 1:30 a. m. such officers were joined by police officers Denell and Fisher, also on duty in plain clothes. Shortly after officers Denell and Fisher arrived there was a knock at the door of the Grill. Duvall went to the door, raised the shade and saw Young and Thompson outside the door. Young asked who owned the station wagon parked near the Grill. It was Denell's car. Duvall opened the door. Young and Thompson started to enter the Grill. Young had an open knife in his hand and "cut at" Duvall across the abdomen but did not contact him with the knife. Young ordered Duvall out of the door and stated, "This is a hold-up." Duvall seized Young and pushed him back out of the door. During the struggle which ensued between them Young dropped the knife. Newville went to Duvall's aid and they subdued Young and forced him down on the sidewalk and ordered him to stay down. While Young was being subdued Denell and Fisher forced Thompson up against the bar. While both Thompson and Young were present in the Grill Duvall asked Young why he came to the Grill. Young answered, "He and I were going to hold it up." Later at a police station Young stated that he and Thompson went to the Grill to hold the place up, that they had information receipts from another bar owned by Georganas would be brought to the Grill after midnight, and that they waited until they were sure such receipts had arrived.

Young testified that on the night of December 12, 1959, he was at the Chip Grill with a friend, that he left the grill and went to the Kennedy Theatre and "looked at a show," that on leaving the theatre he drove to 11th and M Streets and parked his car, that he observed officers beating Thompson and at that time a policeman "grabbed" him and began beating him. He denied that he knew Thompson and denied that he made the incriminating statements.

In the lower court no objection was raised as to the sufficiency of counts one and two. No motion was made for an election between counts one and two nor for a separate trial on counts one and two, and no objections were made to the charge of the court.

In his brief counsel for Young urged that there was a variance between the allegations of count one and the proof. He waived that contention in his oral argument but asserted as error that count one was fatally defective because it failed to identify the person or persons Young intended to rob and that such error should be noticed by this court although no objections on that ground had been urged in the trial court. It should be noted that counsel for Young did not request a bill of particulars identifying the persons intended to be robbed and did not claim surprise at the trial. The offense charged in count one is defined in Title 22, District of Columbia Code, Section 501. Its elements are (1) an assault and (2) made with the specific intent "to commit robbery." Both of those elements were alleged. Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that "The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Rule 7(f) of such rules provides for a bill of particulars. Section 501 does...