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UNITED STATES v. STOLARZ

No. 76-1857.

547 F.2d 108 (1976)

UNITED STATES of America, Plaintiff-Appellee, v. John D. STOLARZ, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Rehearing and Rehearing Denied May 20, 1977.

Attorney(s) appearing for the Case

George R. Nock, Associate Professor (argued), of University of Puget Sound, School of Law, Tacoma, Wash., for defendant-appellant.

John S. Obenour, Asst. U.S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Before TRASK and ANDERSON, Circuit Judges, and WOLLENBERG, District Judge.

Rehearing and Rehearing En Banc Denied May 20, 1977.

WOLLENBERG, District Judge:

In a one count indictment, appellant, then a prisoner at the United States Penitentiary at McNeil Island, Washington, was charged with assaulting another prisoner with intent to murder in violation of 18 U.S.C. § 113(a). Over appellant's objection, the jury was instructed that they might find him guilty either of the offense charged or the "lesser included offense" of assault...

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