United States v. Steven Wayne Lilly

512 F.2d 1259 UNITED STATES of America, Plaintiff-Appellee, v. Steven Wayne LILLY, Defendant-Appellant. No. 74-1063. United States Court of Appeals, Ninth Circuit. Feb. 11, 1975. Richard Carstensen (argued), Billings, Mont., for defendant-appellant. Keith Burrowes, Asst. U. S. Atty. (argued), Billings, Mont., for plaintiff-appellee. Before MERRILL and ELY, Circuit Judges, and REAL, District Judge. * OPINION MERRILL, Circuit Judge: 1 Appellant and two companions, all members of the Assiniboin Indian Tribe, after an evening spent drinking beer at several different parties or locations, decided at 1:30 a. m. to obtain more beer from an establishment located on the Fort Peck Indian Reservation. At that establishment an altercation occurred, the proprietor was shot and killed and beer was stolen. 2 Appellant was indicted for first-degree murder as defined in 18 U.S.C. § 1111 (1970) 1 in that he "did unlawfully kill one William Carl Veseth, a human being, committed in the perpertration of a robbery, by shooting him with a rifle * * *." He was convicted following jury trial. 3 Appellant assigns as error the failure of the district court to instruct the jury that robbery is a crime…

(dissenting):

This appeal arises from the indictment and conviction of Appellant for first degree murder in that he “did unlawfully kill one William Carl Veseth, a human being, committed in the perpetration of a robbery by shooting him with a rifle, in violation of Title 18 U.S.C., Sections 1153 and 1111.” This charge is what is commonly called felony-murder.

The facts, as presented by the record on appeal are relatively clear. Appellant in the company of co-defendants James Red Dog and Ralph Clancy had been drinking beer (the record is devoid of evidence as to how much Appellant actually had to drink). 1 Running low on their supply of beer, Appellant accompanied by co-defendants Red Dog and Clancy went to Bill’s Pizza Palace to “obtain some more beer.” 2 Arriving at the Pizza Palace Appellant and Red Dog went to the back door of the Pizza Palace while Clancy stayed with the car.

In response to Appellant’s and Red Dog’s knock Bill Veseth, the owner of Bill’s Pizza Palace opened the back door. In the ensuing moments Veseth was shot and Red Dog entered the Pizza Palace and took several cases of beer. Veseth later died as the result of the gunshot wounds inflicted during the…

Appellant and two companions, all members of the Assiniboin Indian Tribe, after an evening spent drinking beer at several different parties or locations, decided at 1:30 a. m. to obtain more beer from an establishment located on the Fort Peck Indian Reservation. At that establishment an altercation occurred, the proprietor was shot and killed and beer was stolen.

Appellant was indicted for first-degree murder as defined in 18 U.S.C. § 1111 (1970) 1 in that he “did unlawfully kill one William Carl Veseth, a human being, committed in the perpetration of a robbery, by shooting him with a rifle * * *.” He was convicted following jury trial.

Appellant assigns as error the failure of the district court to instruct the jury that robbery is a crime requiring specific intent and that intoxication may negate the existence of specific intent. The district court rejected appellant’s proposed instructions and instead charged as follows:

The charge with respect to robbery was based on 18 U.S.C. § 2111 (1970). 2 The Government contends, as it did below, that since specific intent is not expressly required by § 2111 it is not an element of the offense of robbery as there defined and…