United States v. Johnson

637 F.2d 1224 (9th Cir. 1980)

 

RULE:

A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense, and the evidence would permit the jury rationally to find the defendant guilty of the lesser offense and acquit him of the greater.

FACTS:

While on an Indian reservation, defendant, an Indian, struck two other Indians with the blunt end and handle of a long-handled ax. Defendant was charged with two counts of assault resulting in serious bodily injury in violation of the Major Crimes Act of 1885, 18 U.S.C.S § 1153 (1976), and 18 U.S.C.S. § 113(f) (1976). Although defendant contested the claim of serious bodily injury, the trial judge did not instruct the jury on any lesser-included offenses. Defendant was convicted of one count.

ISSUE:

May a prosecution for assault resulting in serious bodily injury also involve instructions for assault with a deadly weapon as a lesser-included offense?

ANSWER:

Yes.

CONCLUSION:

The court found that the trial court should have instructed the jury on assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C.S. § 113(c). Indian defendants were entitled to the protection of lesser-included offense instructions, when warranted by the facts, even though the lesser-included offenses were not enumerated in § 1153.

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