UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1963.CDC.121
Appellant, charged with robbery, *fn1 was convicted of assault with intent to commit robbery. Since "robbery, under the District statute, is possible without assault,"*fn2 he maintains that assault with intent to commit robbery is not "an offense necessarily included in" a charge of robbery. Rule 31(c), F.R.Cr.P.
The District robbery statute denounces several kinds of acts taking the property of another, at least one of which apparently does not require an assault.*fn3 Appellant was charged in the full language of the statute, substituting, of course, the conjunctive and for the disjunctive or where necessary. *fn4 Thus, under the indictment, assault may not have been a necessarily included lesser offense as to all kinds of takings charged. But on the facts as developed during the trial, assault with intent to rob was clearly proved. Since the indictment did charge a taking by force and violence, appellant's conviction of the lesser included offense of assault with intent to rob was permissible. Rule 31(c), F.R.Cr.P.
In effect what appellant is attempting to do here, through his very competent court-appointed counsel, is to attack the indictment for duplicity. The attack, however, comes too late. See Rule 12(b) (2), F.R.Cr.P.
BAZELON, Chief Judge (concurring).
Although appellant purports to be attacking the propriety of charging the jury on lesser included offenses, I agree with my brethren that he is in effect attempting an untimely attack against the indictment for duplicity. Whether made against the indictment or the charge, the attack is levelled against the possibility that the conviction was based on facts not found by the grand jury.* But since appellant failed to make a timely challenge to the indictment, I concur in the court's disposition of the case.
But I reject any suggestion that evidence at the trial may be considered in determining whether the grand jury found facts sufficient to constitute an assault. As Mr. Justice Stewart said, writing for the Court in Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962):
"To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of ...