United States v. John D. Stolarz

In a one count indictment, appellant, then a prisoner at the United States Penitentiary at McNeil Island, Washington, was charged with assaulting another prisoner with intent to murder in violation of 18 U.S.C. § 113 (a). Over appellant’s objection, the jury was instructed that they might find him guilty either of the offense charged or the “lesser included offense” of assault with a dangerous weapon with intent to do bodily harm, 18 U.S.C. § 113 (c). The jury subsequently found the appellant not guilty of the crime charged in the indictment, but found him guilty of the “lesser included offense”. The principal argument advanced in this appeal is the impropriety of permitting the jury to consider a charge of assault with a dangerous weapon with intent to do bodily harm.

At the outset, however, we are confronted by a jurisdictional problem because of an apparent failure to timely file a notice of appeal in accord with the provisions of Rule 4(b), Federal Rules of Appellate Procedure. Compliance with Rule 4(b) is both mandatory and jurisdictional. Smith v. United States, 425 F.2d 173 (9th Cir. 1970). The problem was raised by the Court at oral argument and the parties have submitted…