Summary
finding no error where trial judge granted judgment on first-degree murder charges, but instructed the jury on unindicted second-degree murder and manslaughter counts, and jury convicted defendant of manslaughter
Summary of this case from Skrivanek v. StateOpinion
No. 13151.
Argued September 11, 1956.
Decided September 20, 1956.
Appellant filed a brief, pro se, and his case was treated as submitted thereon.
Mr. E. Tillman Stirling, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., and Lewis Carroll and Harold Titus, Jr., Asst. U.S. Attys., were on the brief, submitted on the brief for appellee. Messrs. Leo A. Rover, U.S. Atty., at the time record was filed, and John W. Kern, III, Asst. U.S. Atty., also entered appearances for appellee.
Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges.
Indicted for murder in the first degree, Charles Howard was found guilty of manslaughter. He was sentenced to imprisonment for from five to fifteen years and did not appeal. A year later, Howard moved to vacate sentence under 28 U.S.C. § 2255, and appeals from the District Court's denial of his motion.
The trial judge held the proof failed to how first degree murder and instructed only on murder in the second degree and manslaughter. Howard says that in doing so the court amended the indictment; that if not found guilty of first degree murder, he should have been acquitted. Thus he seems to argue the court erred in not directing a verdict of acquittal instead of instructing on lesser included offenses.
The point is not well taken, even if it could be raised under § 2255.
Affirmed.