United States v. Leonard Francis Davison and William Andrew Davison

The facts in this case are fully outlined in our opinion in United States v. Antelope [Davison and Davison], 523 F.2d 400 (CA9 1975). That decision was reversed by the United States Supreme Court in United States v. Antelope et a l.,-U.S.-, 97 S.Ct. 1395 , 51 L.Ed.2d 701 (1977), and the cause remanded to us for further proceedings consistent with the opinion of that Court.

LEONARD FRANCIS DAVISON APPEAL

• The Supreme Court opinion, above mentioned, rejects appellant’s sole contention.

WILLIAM ANDREW DAVISON APPEAL

The appellant’s first contention is rejected by the above mentioned Supreme Court decision.

Next, he argues that the indictment was defective in charging him with felony murder without specifically charging him in a separate count with the commission of burglary or robbery. Appellant, convicted of second degree murder, was charged with neither burglary (Count One), nor robbery (Count Two), but with murder (Count Three) “. . .in the perpetration of the robbery alleged in Count Two . . .” Counts Two and Three are set forth in the opinion of the district court, United States v. Antelope, 377 F.Supp. 193, 194 (D.Idaho 1974).

The incorporation of counts by reference is…