Carl S. Kelly v. United States

LEVENTHAL, Circuit Judge:

This is an appeal from a conviction for violation of 21 U.S.C. § 174 (facilitating the concealment or sale of narcotics). One of appellant’s points merits comment. Appellant contends that D.C.Code, § 33-402 (unlawful possession of narcotics) was a “lesser included offense” and that it was reversible error for the trial judge to refuse to put to the jury an alternative instruction permitting it to find defendant guilty of this offense.

The lesser included offense rule is set forth in Rule 31(c) of the Federal Rules of Criminal Procedure: “The defendant may be found…