United States v. John D. Stolarz

While a prisoner at the United States Penitentiary at McNeil Island, Washington, appellant was charged in a one count indictment with assaulting another prisoner with intent to commit murder in violation of 18 U.S.C. § 113 (a). Over his 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 found appellant not guilty of the crime charged in the indictment, but found him guilty of the lesser included offense. We affirm.

I. Lesser Included Offense.

At trial, the victim testified that appellant was his assailant. One inmate testified that appellant had admitted to him that he had stabbed the victim. Another inmate testified that appellant asked him to be on the lookout for correctional officers while “he did something” to the victim and that appellant shortly thereafter told him that he had “got” the victim by a stabbing. Appellant denied the stabbing and denied the conversations with the two inmates who had testified on behalf of the government. An inmate witness called on his behalf testified that the victim had…