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PAYNE v. UNITED STATES

Nos. 21232, 21233.

392 F.2d 820 (1968)

Calvin W. PAYNE, Appellant, v. UNITED STATES of America, Appellee. Hezekiah BLUE, Appellant, v. UNITED STATES of America, Appellee.

United States Court of Appeals District of Columbia Circuit.

Decided March 5, 1968.

Petition for Rehearing Denied May 24, 1968.

Attorney(s) appearing for the Case

Mr. Alexander B. Hawes, Washington, D. C. (appointed by this court) for appellants.

Mr. Larry D. Knippa, San Antonio, Tex., Sp. Atty., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Seymour Glanzer, Asst. U. S. Attys., were on the brief, for appellee. Mr. Joel M. Finkelstein, Asst. U. S. Atty., also entered an appearance for appellee.

Before DANAHER, WRIGHT and LEVENTHAL, Circuit Judges.

Petition for Rehearing En Banc in No. 21,233 Denied May 24, 1968.

PER CURIAM:

Convicted of assault with intent to commit robbery in violation of D.C.CODE § 22-501, appellants have here contended principally that the trial judge had erred in his handling of a Luck1 issue and in his failure to instruct the jury that the appellants might have been found guilty of simple assault as a lesser included offense.

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