Opinion
No. 16133.
Argued March 28, 1961.
Decided May 25, 1961.
Mr. Barry Sidman, Washington, D.C. (appointed by this court) for appellant.
Mr. John R. Schmertz, Jr., Asst. U.S. Atty., with whom Mr. Oliver Gasch, U.S. Atty. at the time of argument, and Mr. Carl W. Belcher, Asst. U.S. Atty., were on the brief, for appellee. Mr. Donald S. Smith, Asst. U.S. Atty., also entered an appearance for appellee.
Before PRETTYMAN, WASHINGTON and BASTIAN, Circuit Judges.
Appellant Kosmos was indicted in three counts. The second count was dismissed. He pleaded guilty to Counts I and III, which were for housebreaking and employing a dangerous weapon in obstructing an officer of the law while the officer was engaged in the performance of official duties. Prior to sentence Kosmos filed a motion in arrest of judgment, attacking the sufficiency and validity of the two counts in the indictment. He was then sentenced, and thereafter his motion was denied. He appealed.
The conviction on Count I is clearly to be affirmed, no error appearing affecting substantial rights of the appellant. Since the sentence was a general sentence and not greater than the maximum which could have been imposed on Count I, it is to be affirmed without the necessity for discussion of points relating to Count III alone.
See Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).
Affirmed.