Bryant O. Pearce, Appellant, v. United States of America, Appellee, 286 F.2d 532 (D.C. Cir. 1960)

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US Court of Appeals for the District of Columbia Circuit - 286 F.2d 532 (D.C. Cir. 1960) Argued November 15, 1960
Decided December 1, 1960

Messrs. Ronald A. Capone and Robert Henri Binder, Washington, D. C. (both appointed by this court) for appellant.

Mr. Arnold T. Aikens, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before FAHY, DANAHER and BASTIAN, Circuit Judges.


Appellant, who was indicted in a two-count indictment covering grand larceny and larceny after trust (Title 22 D.C. Code §§ 2201, 2203), was tried by the court, jury trial having been waived. At the close of the Government's opening statement, a motion for judgment of acquittal as to larceny after trust was granted. The court restricted the proof of the charge of grand larceny to the lesser included offense of an attempt to commit grand larceny. Appellant was found guilty of the reduced charge and was duly sentenced. He appeals.

Appellant urges (a) that there was material and prejudicial variance between the indictment and conviction, and the proof; (b) that the trial court committed prejudicial error in precluding cross-examination concerning the actual ownership of the property for the attempted theft of which he was indicted and convicted; and (c) that the trial court convicted him contrary to law by applying to the evidence an erroneous concept of the crime of attempted larceny by trick.

On this appeal, assigned counsel earnestly and ably pressed the errors assigned. Our examination of the record, however, convinces us that under the circumstances of the case there was no error affecting substantial rights.

Accordingly, the judgment of the District Court is