Yates

Appellant, John Edward Yates, was indicted under §§ 272 and 276 of the Criminal Code, 18 U.S.C.A. §§ 451 , 455. 1 The indictment charged that appellant, on or about *581 February 4, 1944, “in and on board a certain American vessel known as and called the ‘President Johnson,’ belonging in whole or in part to the American President Lines, Inc., a corporation created by and under the laws of the State of Delaware, on waters within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State of the United States, to-wit, at Purvis Bay, Florida Island, Solomon Island Group, then and there being, with a knife or some sharp instrument, a more particular description of said knife or instrument being to the Grand Jurors unknown, then and there unlawfully, feloniously, wilfully with malice aforethought, and with intent to kill Henry Frederick Olsen, did assault, beat, strike, cut and stab said Henry Frederick Olsen, a male human being, with said knife or sharp instrument, in the side and arm and elsewhere in and upon the body of said Henry Frederick Olsen.”

Appellant was arraigned, pleaded not guilty and was tried. The jury returned the…

(dissenting).

I am unable to go along with the decision of my associates, notwithstanding I believe the result they reach is not greatly out of harmony with the result the jury itself desired to arrive at. In my view we can do no more than reverse and remand for a new trial.

I think the indictment sufficiently charged the crime of assault with intent to commit murder as that crime is defined in § 276 of the Criminal Code. I think, also, that the verdict actually found was one which might properly have been returned under the indictment and in conformity with the statute. Further, I agree that the crime denounced by the statute of unlawfully striking, beating, or wounding another is an included offense of which, under an indictment framed as this one was, a verdict of guilty might properly be returned.

Here the jury were confined by the judge to one of three courses; under the instructions they might find appellant either not guilty, or guilty of assault with intent to commit murder or of assault with a dangerous or deadly weapon — both felonies heavily punishable under the statute. Appellant had requested an instruction permitting the return of a verdict for one or the other of…