Opinion
No. 17003.
Argued September 14, 1962.
Decided October 4, 1962.
Mr. Eugene A. Chase, Washington, D.C. (appointed by the District Court), with whom Mrs. A. Lillian C. Kennedy, Washington, D.C., was on the brief, for appellant.
Mr. Barry Sidman, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Nathan J. Paulson, U.S. Atty., at the time of argument, were on the brief, submitted on the brief for appellee.
Before WILBUR K. MILLER, Chief Judge, and EDGERTON and WRIGHT, Circuit Judges.
In the first count of a three-count indictment, Ronald K. Payne and two others were charged with robbery. In the second and third counts, he and another were charged with rapes of two victims, one named in each count. Tried separately, Payne was found guilty by the jury and was sentenced to five to fifteen years on count one, ten to thirty years on count two, and five to fifteen years on count three. The first two sentences were consecutive but the third was concurrent with the first two. We refrain from reciting the unusually revolting details. Suffice it to say that the evidence showed Payne himself committed the rape described in count two, and aided and abetted his companion in the accomplishment of the rape described in count three.
Payne contends on appeal that an acquittal on all counts should have been directed on the ground of insanity, that an acquittal on count three should have been directed because of insufficient evidence, and that the court "erred in it's Instruction and comments to the Jury."
Conflicting evidence on the insanity issue presented a question for the jury which that body resolved against the appellant. We need not consider his argument as to the insufficiency of the evidence that he aided and abetted in the rape charged in count three, because his sentence therefor was concurrent with those imposed under the first two counts, which are not being disturbed. A familiar and well-established principle makes the count three argument academic.
Appellant's criticism of the court's charge and comments to the jury is without substance.
Affirmed.