Elie Andrew GRAVES, Appellant, v. UNITED STATES of America, Appellee

BURGER, Circuit Judge

(dissenting).

Careful examination of the record satisfies me that there was no evidence in troduced on larceny which would permit, let alone require, an instruction on that lesser included oífense. I agree with the District Judge’s view of the evidence, that the jury was compelled either to find appellant guilty of robbery or to acquit him. Unless the evidence in a new trial varies from the record now before us the situation will be the same, as I see it. It should be noted that when counsel for the defense requested the larceny instruction and the District Judge asked what evidence in the case required the instruction, defense counsel did not point to any such evidence and did not object to the instruction as ultimately given.

The jury verdict of guilty on the robbery count is amply supported by the evidence. I would deny the government’s motion to remand and affirm the judgment of the District Court.

PER CURIAM.

The appeal is from a conviction of appellant of robbery, defined in 22 D.C. Code § 2901. At trial counsel for the defense requested the court to instruct the jury on the lesser included offense of larceny, which the court declined to do. In this court the United States Attorney commendably agrees that the failure so to instruct was error and moves for remand to the District Court with directions to hold a new trial, citing the intervening decision of this court in Young v. United States, 114 U.S.App.D.C. 42, 309 F.2d 662 (1963), and referring also to our intervening decision in Hunt v. United States, 115 U.S.App.D.C.-, 316 F.2d 652 (1963). Able counsel for appellant appointed by this court suggests that the remand should be for trial only of larceny; but we do not adopt this suggestion because in our view the evidence was sufficient to raise a jury issue as to robbery.

The motion of the United States is granted, the judgment is reversed, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.

It is so ordered.