United States v. Victor Francisco

This case comes to us on appeal from the district court’s denial of appellant’s motion to dismiss the indictment and his motions for judgment of acquittal. Appellant contends that the indictment which had charged him with armed burglary in the nighttime, in violation of Title 18, United States Code, Section 1153 , and Arizona Revised Statute, Section 13-302 had failed to allege a federal offense. Appellant also claims that the evidence failed to establish the requisite elements of armed burglary in the nighttime. We reject both of these claims and agree with the orders of the district court which denied his motions.

I. Facts.

The indictment of the Grand Jury charged the appellant Francisco, an Indian, with entering a dwelling house within Indian Country in April 1975 with the intent to commit petty larceny, and that while committing said burglary, the appellant was armed with a deadly weapon — a butcher knife — in violation of 18 U.S.C. § 1153 and Ariz.Rev.Stat. § 13-302.

On October 17, 1975, the appellant filed a motion to dismiss the indictment, contending that the indictment failed to allege a federal offense. Francisco claims that armed burglary in the nighttime is…