United States v. Mingo

Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused was charged with attempted rape. At the trial, the law officer instructed on assault with intent to commit rape and indecent assault as lesser 'included offenses. On this appeal the accused contends that the law officer erred in these instructions to his prejudice.

In United States v Hobbs, 7 USCMA 693, 23 CMR 157, the majority of the Court held that assault with intent to commit rape is lesser included in a charge of attempted rape. However, whether a lesser offense is present in a particular case depends upon the evidence. Here,…