459 F2d 1040 United States v. West

459 F.2d 1040

UNITED STATES of America, Plaintiff-Appellee,
v.
Olan WEST, Defendant-Appellant.

No. 71-3427 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

May 23, 1972.

Jim T. Bennett, Jr., Jim T. Bennett, Jr. and Associates, Valdosta, Ga., for defendant-appellant.

William J. Schloth, U. S. Atty., J. Reese Franklin, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM:

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1

A jury found Olan West guilty of illegal possession and sale of distilled spirits (whiskey) in violation of 26 U.S.C. Secs. 4205(a) (2) and 5604(a). In his appeal West contends that the District Court erred in refusing to permit a Government witness to answer certain questions on cross-examination; also in the Trial Judge allegedly acting as an advocate for the United States. The record shows that West's counsel attempted to ask the witness if he knew of any evidence tending to show the guilt or innocence of the defendant. The District Court felt that the question called for a conclusion on the part of the witness, which conclusion invaded the province of the jury to evaluate the evidence. The Court did not wish to permit the witness, a Government agent, to express an opinion as to whether West was guilty or not. After defendant's counsel persisted in attempting to elicit the testimony, the Judge stated that he would allow the question to be answered, whereupon defendant's counsel stated that he had no further questions. The record shows that the District Court's conduct was well within its discretion, Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, and that the Court did not act as an advocate for the Government in any manner, Kowalsky v. United States, 5 Cir., 1961, 290 F.2d 161, cert. denied, 368 U.S. 875, 82 S.Ct. 120, 7 L. Ed.2d 76 (1961).

2

Affirmed.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F. 2d 409, Part I