United States v. Larry Burdette Johnson

Larry Burdette Johnson was convicted of one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(f) (1976). On this appeal, Johnson raises several instances of claimed error which occurred during his trial, the most important of which was the trial court’s refusal to deliver lesser included offense jury instructions. We conclude that the failure to give such instructions was reversible error.

I

FACTS

Johnson, an Indian, was charged with two counts of assault resulting in serious bodily injury. The charges stemmed from an incident occurring within the boundaries of the Fort Hall Indian Reservation on or about April 23,1978. The victim in Count I was Edwin Papse, and the victim in Count II was Richard Johnson, appellant’s father. Both victims are Indians.

During the day of April 22, 1978, Johnson, the victims, and others were drinking alcoholic beverages in Blackfoot, Idaho, a short distance from the Fort Hall Indian Reservation. Later that day these individuals went to Johnson’s residence on the Fort Hall Reservation. In the late evening or early morning, Johnson had an argument with his wife. Afterwards, he allegedly struck Papse and…