344 F2d 1016 Wade v. United States
344 F.2d 1016
J. C. WADE, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Fifth Circuit.
May 7, 1965.
Rehearing Denied June 8, 1965.
Zach H. Douglas, Jacksonville, Fla., for appellant.
Samuel S. Jacobson, Asst. U. S. Atty., Jacksonville, Fla., Edward F. Boardman, U. S. Atty., for appellee.
Before TUTTLE, Chief Judge, and PHILLIPS* and WISDOM, Circuit Judges.
This is an appeal from a judgment and sentence on an indictment charging the use of the mails to defraud, in violation of 18 U.S.C.A. § 1341. Error is predicated on the admission of answers to certain questions on cross-examination of the defendant, duly objected to on the ground that they were not admissible for the purpose of proving intent. We agree they were not admissible to show intent, but we think they were proper preliminary questions to a further inquiry, had they been answered in the affirmative, which would have tested the truth of the testimony of the defendant that he had acted in good faith and were admissible as primary evidence. Error is also predicated upon another question propounded on cross-examination of the defendant. The court sustained an objection to that question and instructed the jury to disregard it. The defendant was represented by counsel of his own choice, who did not move for a mistrial. Hence, he may not here urge that the instruction of the trial court did not cure the harm resulting from the question; and we do not think we should notice the alleged error of our own motion.
Senior Judge of the Tenth Circuit sitting by designation