UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Leventhal and Wilkey, Circuit Judges, and Ronald N. Davies,* U.S. Senior District Judge for the District of North Dakota.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DAVIES
This case arose out of the fatal shooting of Aaron F. Rogers which occurred on a public street in the District of Columbia at approximately 3:30 p.m. on July 14, 1969.
Shortly after 3:00 p.m. on that date the defendant, Louis L. Williams, had inquired of Dorsey McNeill if he had seen Rogers and was informed that Rogers had been seen going toward M Street. Williams departed in the opposite direction towards N Street. Fifteen to 25 minutes later McNeill heard the sound of a shot in the direction of 7th and N Streets and immediately went to the scene where he observed Rogers on his knees with a bullet wound in his stomach. Rogers was transported to a hospital where he was pronounced dead at 5:45 p.m. of "hemorrhage secondary to gunshot wound of the abdomen." A.25 caliber shell casing was recovered by a police officer at the scene of the shooting.
The only eyewitness was a seven-year old boy, Gregory Buckner, who had observed two men talking, Rogers with money in his hands and the other with his hands in his pockets who asked that the money be placed on the ground. Rogers refused and the other man removed a gun from his pocket, shot Rogers, picked up the money and fled through an alley.
One week later on July 21, 1969, at approximately 6:30 a.m. the defendant appeared at the apartment of Louis Marshall with a gun in his hand. A short conversation ended with the defendant leaving the apartment through the door while Marshall exited via the fire escape followed by one Joyce Venable. Upon reaching the ground Marshall saw the defendant coming down the alley carrying a brown paper sack. When Venable reached the ground she observed the defendant, who was lying on the ground with a gunshot wound in the leg, discard a paper bag. When a police officer arrived on the scene he was told by Venable that the defendant had thrown a brown bag into a bush. The retrieved bag contained a.25 caliber automatic weapon. Microscopic comparison for ballistic and firearm identification showed positively that the bullet, which had caused the death of Aaron F. Rogers and which had been removed from his body had been fired from this weapon.
Louis L. Williams, charged in a five -count indictment of felony-murder, second degree murder, attempted robbery while armed, attempted robbery and carrying a dangerous weapon, was convicted by a jury on Counts One, Three and Five which read as follows:
"FIRST COUNT: On or about July 14, 1969, within the District of Columbia, Louis L. Williams did kill Aaron F. Rogers while perpetrating the crime of attempted robbery, as set forth in the third and fourth counts of this indictment.
"THIRD COUNT: On or about July 14, 1969, within the District of Columbia, Louis L. Williams, while armed with a dangerous weapon, that is, a pistol, by means of certain overt acts, that is, by arming himself with a pistol and pointing said pistol at Aaron F. Rogers, did attempt by force and violence and against resistance and by putting in fear, to steal and take from the person and from the immediate actual possession of Aaron F. Rogers, money and other valuable property.
"FIFTH COUNT: On or about July 14, 1969, within the District of Columbia, Louis L. Williams did carry, openly and concealed on or about his person, a dangerous weapon, capable of being so concealed, that is, a pistol, without a license therefor issued as provided by law."
At trial the defendant, by appropriate motions, challenged the sufficiency of the evidence to support the convictions and one of the issues here is the adequacy of the prosecution's proof. In addition, pursuant to Fed.Rules Crim.Proc. rule 52(b), there is raised the lower court's failure properly to instruct as to the elements constituting the crimes of attempted armed robbery and of attempted robbery as well as the court's instruction that the defendant could be found guilty of carrying a dangerous weapon on July 21, 1969, when Count Five actually charged that the offense occurred on July 14, 1969.
While the evidence presented was paper thin *fn1 it must be viewed in the light most favorable to the prosecution, Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), making full allowance for right of the jury to draw justifiable inferences of fact from the evidence and to assess credibility of the witnesses, United States v. Lucas, 144 U.S.App.D.C. 368, 447 F.2d 338 (1971); United States v. Hardin, 143 U.S.App.D.C. 320, 443 F.2d 735 (1970), and, in so doing, there was sufficient direct and circumstantial evidence from which the jury might find the defendant guilty beyond a reasonable doubt.
The defendant's remaining contentions are well taken. The court's instructions pertaining ...