226 F2d 222 Boyd v. United States
226 F.2d 222
Mark Hanna BOYD, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Fourth Circuit.
Argued Oct. 3, 1955.
Decided Oct. 5, 1955.
George B. Little and George R. Humrickhouse, Richmond, Va. (Denny, Valentine & Davenport, and Williams, Mullen, Pollard & Rogers, Richmond, Va., on the brief), for appellant.
R. R. Ryder, Asst. U.S. Atty., Richmond, Va. (L. S. Parsons, Jr., U.S. Atty., Norfolk, Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal in a criminal case in which appellant was convicted under two counts of an indictment charging the transportation in interstate commerce of stolen automobiles in violation of 18 U.S.C. § 2312. Question is raised as to the sufficiency of the evidence to take the case to the jury; but we think it clearly sufficient in the light of the decision of this court in Battaglia v. United States, 4 Cir., 205 F.2d 824, 827. As the appellant was given a general sentence under both counts upon which he was convicted, which was not in excess of the sentence that he might have been given upon conviction on a single count, this sentence will not be disturbed if the conviction is sustainable on either count. We think, however, that the evidence is sufficient to sustain it upon both. The motion to set aside the verdict and grant a new trial because of a statement made by the Assistant United States Attorney during the course of the trial, to which no exception was taken at the time, was a matter addressed to the sound discretion of the trial judge; and there is no basis for holding that this discretion was abused.