United States v. Johnson

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



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.


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.


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




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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