decided: July 29, 1981.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
MARTIN J. PHILLIPPI, DEFENDANT-APPELLANT .
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80-CR-81 -- Myron L. Gordon, Judge .
Before Cummings and Pell, Circuit Judges, and Larson, Senior District Judge.*fn*
Author: Per Curiam
Defendant was charged in Count 2 of the indictment with a violation of 18 U.S.C. §§ 1153 and 113(c) in that he assaulted another with a dangerous weapon to do bodily harm. He allegedly placed a large knife at the throat of Lynn Peters and cut her neck. The jury found defendant guilty on Count 2 and acquitted defendant on Count 1, in which he was charged with kidnapping.
The only issue on appeal is whether an indictment charging assault with a dangerous weapon under 18 U.S.C. § 113(c) is defective when it fails to allege that the defendant committed the assault without just cause or excuse.
The Magistrate in denying defendant's motion to dismiss Count 2 relied on an earlier decision by Judge Gordon, who presided at this trial, in U. S. v. Peters, 476 F. Supp. 259 (E.D.Wis.1979). In Peters Judge Gordon decided that the prosecution was not obliged to include a reference to "just cause or excuse" in the indictment. Id. at 262.
The Court of Appeals for the Ninth Circuit in Hockenberry v. U. S., 422 F.2d 171, 173 (1970), decided that it was not necessary to recite in the indictment that the assault was "without just cause or excuse."
We agree with the Ninth Circuit in Hockenberry and with Judge Gordon in Peters.
The judgment of conviction on Count 2 is therefore affirmed.