468 F2d 610 United States v. Hickman

468 F.2d 610

UNITED STATES of America, Plaintiff-Appellee,
v.
Paul Bert HICKMAN, Defendant-Appellant.

No. 72-1753 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 2, 1972.

Frank B. Hester, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

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1

Hickman appeals from a jury conviction and 10 year sentence for defrauding a car dealer out of a new Lincoln automobile by giving him a bad check and causing him to travel in interstate commerce from Alabama to Georgia in violation of 18 U.S.C. Sec. 2314. We affirm.

2

1. The testimony of three government witnesses as to a financial statement was admissible under an exception to the best evidence rule, that is, that secondary evidence is admissible, within the discretion of the trial judge, where it appears that the original writing has been lost or destroyed, without any fault of the party offering the evidence.

3

2. The four insufficient checks were admissible into evidence to prove intent, and no abuse of discretion of the trial judge was shown.

4

3. The trial judge was in the best position to determine possible prejudice from the prosecutor's reference to excluded evidence. He rebuffed the attorney at the time, and he did not abuse the broad discretion allowed the trial court in denying a motion for a mistrial.

5

4. We perceive no error in the trial judge's charge to the jury concerning the proof of other similar offenses or acts to show fraudulent intent.

6

Affirmed.

*

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