Petition for Rehearing En Banc Denied January 13, 1967.
LEVENTHAL, Circuit Judge:
This is an appeal from a conviction for violation of 21 U.S.C. § 174 (facilitating the concealment or sale of narcotics). One of appellant's points merits comment. Appellant contends that D.C.Code, § 33-402 (unlawful possession of narcotics) was a "lesser included offense" and that it was reversible error for the trial judge to refuse to put to the jury an alternative instruction permitting it to find defendant guilty of this offense.
The lesser included offense rule is set forth in Rule 31(c) of the Federal Rules of Criminal Procedure: "The defendant may be found guilty of an offense necessarily included in the offense charged * * *" For a lesser offense to be "necessarily included" in the offense charged it "must be such that the greater offense cannot be committed without also committing the lesser." Crosby v. United States, 119 U.S.App. D.C. 244, 245, 339 F.2d 743, 744 (1964). The standard is usually applied by ascertaining whether all the elements of the lesser offense, i. e., the elements required to be established to constitute the offense, are also elements of the greater offense. Here unlawful possession of narcotics is not an element of the offense charged.
Appellant's contention misconceives the nature and purpose of the lesser included offense doctrine. The doctrine evolved at common law to "prevent the prosecution from failing where some element of the crime charged was not made out." People v. Mussenden, 308 N.Y. 558, 562, 127 N.E.2d 551, 553 (1955). Such aid of the prosecution was also, apparently, the purpose of the 1872 federal statute carried forward into Rule 31(c). United States v. Markis, 352 F.2d 860, 866 (2d Cir. 1965).
Appellant cannot demand a lesser-included offense instruction not available to the prosecutor on the ground that the rule is one that in effect entitles defendant to "plead for mercy." An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such an instruction. Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 134-135, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 39 L.Ed. 343 (1895).