United States of America, Plaintiff-appellee, v. Romeo Luan Arreola, Defendant-appellant, 422 F.2d 869 (10th Cir. 1970)

A jury found defendant-appellant Arreola guilty of assault with intent to do bodily harm and by use of a dangerous weapon on land within the jurisdiction of the United States in violation of 18 U.S.C. § 113. He appeals from the judgment imposing sentence.

Defendant and Jose Maria Leal, Jr., were inmates at the Federal Reformatory in El Reno, Oklahoma. Defendant admitted that he stabbed Leal with a knife and claimed that he did it in self-defense. He seeks a reversal on the ground that the trial court failed to instruct the jury on a lesser included offense. No request for such an instruction was made and no objection was made at the trial because of the omission of such an instruction. The argument is that the defect is a plain error affecting substantial rights and should be noticed under Rule 52(b), F.R.Crim.P.

The matter is foreclosed by our decision in Hanks v. United States, 10 Cir., 388 F.2d 171, 175, cert. denied 393 U.S. 863, 89 S. Ct. 144, 21 L. Ed. 2d 131, which holds that when the evidence discloses only an assault with a deadly weapon failure to instruct on a lesser offense is not plain error. In the case at bar the charge and the proof related only to an assault with a knife approximately eight inches in length. No claim is made that the knife was not a dangerous weapon. There is no dispute over the fact that the defendant did stab Leal with the knife. Absent such a factual dispute there was no error in not instructing on the lesser offense. See Sansone v. United States, 380 U.S. 343, 350, 85 S. Ct. 1004, 13 L. Ed. 2d 882.

Affirmed.