192 F2d 388 Logan v. United States

192 F.2d 388




No. 13551.

United States Court of Appeals Fifth Circuit.

Nov. 20, 1951.

Rehearing Denied Dec. 28, 1951.

Clyde G. Hood, Dallas, Tex., for appellant.

Frank B. Potter, U.S. Atty., Fort Worth, Tex., Lester L. May, Asst. U.S. Atty., Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

JOSEPH C. HUTCHESON, Jr., Chief Judge.

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On this appeal from a conviction for a narcotics violation, the record, containing no exceptions to the introduction of evidence, none to the charge, and no motion for a directed verdict, presents on its face nothing for our review.


In view of the fact, however, that the counsel who tried the case below was not self chosen but appointed by the court, and it is claimed by the counsel who prosecutes the appeal that the record reveals plain errors affecting substantial rights noticeable under Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., we have carefully examined the record to determine if this is so.


One of the claimed errors is that it was error to allow the prosecution to introduce in evidence some matchboxes containing marihuana seed, that this constituted proof of a separate and distinct offense and was, therefore, fundamental error.


We do not think so. The matchboxes were not offered as constituting an additional offense but as part of the res gestae. Cf. Hensley v. United States, 82 U.S.App.D.C. 14, 160 F.2d 257.


Another is that the court did not give a full and adequate charge.


Putting aside the fact that, since no objection was made below, the claimed error must be highly prejudicial on its face, we find the charge adequate.


The judgment is affirmed.