213 F.2d 619
United States Court of Appeals District of Columbia Circuit.
Argued May 26, 1954.
Decided June 3, 1954.
Mr. William E. Owen, Washington, D. C., with whom Mr. Ralph Stein, Washington, D. C., was on the brief, for appellant.
Mr. Lewis A. Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Harold H. Titus, Jr., Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.
Before WILBUR K. MILLER, PRETTYMAN and BAZELON, Circuit Judges.
Six counts of an indictment returned May 6, 1953, charged Raymond J. Watson and the appellant, Charles Reynolds, with violating the narcotics statutes. A seventh count charged Reynolds alone with purchasing, selling, dispensing and distributing certain capsules containing a mixture of morphine sulphate, not in or from the original stamped package.
When the case was called for trial October 19, 1953, Watson withdrew his plea of not guilty and pleaded guilty to Counts 1 and 6. Although no disposition had been made of the other four counts against Watson, the trial proceeded against Reynolds alone, who was found guilty under all seven counts. He was fined and sentenced to imprisonment for from three to ten years on each count, the sentences to run concurrently.
On this appeal Reynolds alleges error in the trial judge's refusal to instruct the jury that it might infer from the government's failure to introduce Watson as a witness that his testimony would have been unfavorable to the prosecution. He asserts Watson was available to the government but could not be called by him because he was a co-indictee. This assignment of error, which relates only to the first six counts in which Watson and Reynolds were both charged, need not be considered. Reynolds' conviction under the seventh count, in which he alone was accused, — with respect to which we find no error — is sufficient to support the sentence imposed upon him. Jackson v. United States, 94 U.S.App. D.C. ___, 214 F.2d 240.