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06/03/74 United States of America v. Preston G. Thornton

June 3, 1974

UNITED STATES OF AMERICA

v.

PRESTON G. THORNTON, APPELLANT APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 1974.CDC.125



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

Bazelon Chief Judge, and MacKinnon, Circuit Judge, and Christensen,* United States Senior District Judge for the United States District Court for the District of Utah.

Opinion for the Court filed by Circuit Judge MacKinnon.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON

Appellant was convicted of first degree burglary (D.C. Code 22-1801(a)),1 rape (D.C. Code § 22-2801), sodomy (D.C. Code § 22-3502) and robbery (D.C. Code § 22-2901). After reviewing the briefs and record we concluded that oral argument was unnecessary. Hereafter we discuss the issues raised and affirm the judgment of conviction. I

At the close of the Government's case the court granted a motion for judgment of acquittal with respect to three armed counts and in stating to the jury that it had done so, said:

In other words, those counts are no longer before you for your deliberations. You will be concerned only with the Four Counts of this indictment. (Tr. 178.)2

Previously the court had told the jury:

You should not draw any inferences, nor should you be influenced with respect to the innocence or guilt of the defendant by any ruling which I made during the course of the trial. (Tr. 172.)

At the time these instructions were given defense counsel did not object to them and later he indicated he was satisfied with the instructions given by the court (Tr. 193-94). Under such circumstances, and in view of the other instructions given by the court, we see no error. II

For his second point appellant contends that the court did not properly instruct the jury with respect to the intent required for first degree burglary. However, the court did read the burglary statute to the jury as part of the instructions (Tr. 179) and that contains a statement of the required intent.3 As to the intent required the court instructed as follows:

You must find that the Government has proved beyond a reasonable doubt . . . that at the time the Defendant intended to break and carry away . . . or to commit some criminal offense therein. (Tr. 180.)

Finally, the court gave another instruction on intent:

Some criminal offenses require only a general intent. Where this is so, and it is shown that a person has knowingly committed an act which the law makes a crime, ...


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