United States v. Willie Whitaker

WILKEY, Circuit Judge:

Appellant Whitaker was convicted in the court below under a one-count indictment charging first degree burglary. 1 As one of his points on appeal, 2 he assigns as error the trial court’s refusal to instruct the jury on unlawful entry as a lesser included offense of first degree burglary. On the indictment and evidence presented at trial, we conclude that the instruction should have been given and remand for either a new trial or resentencing in accordance with the procedure and for the reasons set forth below.

At approximately 10:45 a. m. on 31 October 1968 appellant…