391 F2d 260 Rider v. United States

391 F.2d 260

Boyd RIDER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 24858.

United States Court of Appeals Fifth Circuit.

March 12, 1968.

John Crudup, Gainesville, Ga., for appellant.

Robert L. Smith, Asst. U.S. Atty., Atlanta, Ga., for appellee.

Before WISDOM, BELL and DYER, Circuit Judges.

PER CURIAM:

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1

Boyd R. Rider appeals his conviction for possession of forty-eight gallons of whiskey in unstamped containers in violation of 26 U.S.C. 5205, 5604. Substantial evidence supports the jury verdict finding Rider guilty.

2

Defense counsel moved during the trial to have Newson's testimony relating to incriminating statements by a co-defendant struck from the record. The trial judge refused, and this refusal is urged as error on appeal. These statements were properly admitted as declarations of a conspirator in furtherance of the conspiracy with which Rider and two co-defendants were charged. The statements were admitted with cautionary instructions that they could be considered only against the person who made them until the existence of the conspiracy was established. No further objection followed the court's cautionary instruction; the same testimony was elicited on cross-examination. We find no error on this point.

3

Finally, Rider contends that the trial court's charge relating to entrapment was misleading, in this it suggested that the defenses of mistaken identity and entrapment were inconsistent. First, as the trial court stated in replying to counsel's objection, 'as a matter of law they are inconsistent'. Second, the court in fact merely charged regarding entrapment that 'an accused is entitled to any and all defenses he desires, whether consistent or not'. Finally, defense counsel in his closing argument to the jury himself predicated his remarks on entrapment with 'Now this is not consistent with what the Defendants say'. We find no error on the entrapment issue.

4

The district court's judgment is affirmed.