389 F2d 563 United States v. B Corson J J

389 F.2d 563

UNITED STATES of America
v.
Robert B. CORSON, Eugene J. McCullough, Eugene J. McCullough, Appellant.

No. 16761.

United States Court of Appeals Third Circuit.

Argued January 15, 1968.

Decided February 13, 1968.

Rehearing Denied March 8, 1968.

Harry L. Clark, Philadelphia, Pa., for appellant.

Austin Hogan, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before HASTIE, Chief Judge, GANEY, Circuit Judge, and WEINER, District Judge.

OPINION OF THE COURT

PER CURIAM.

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1

This is an appeal from a conviction for bank robbery. The principal contention is that the court below erred in failing to instruct the jury that prior statements of a defense witness, inconsistent with his trial testimony that the accused did not participate in the crime, could be used only to impeach his testimony and not as affirmative proof of the matter therein asserted.

2

The omission of this item from the charge was not brought to the attention of the trial court at the conclusion of the charge or even in a motion for a new trial. With the matter now raised for the first time, we do not view the alleged error as one of such type and potential prejudicial consequence as to require a corrective reversal under Rule 52(b), Federal Rules of Criminal Procedure.

3

No other point made on this appeal discloses reversible error.

4

The judgment will be affirmed.