468 F2d 907 United States v. G Haywood

468 F.2d 907

UNITED STATES of America, Plaintiff-Appellee,
v.
Warren G. HAYWOOD, a/k/a Beadie, Defendant-Appellant.

No. 72-2076 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 25, 1972.
Rehearing and Rehearing En Banc Denied Nov. 21, 1972.

Robert Glass, New Orleans, La. (court-appointed), for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:

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1

Appellant was convicted of distributing heroin in violation of 21 U.S. C.A. Sec. 841(a)(1). There are three assignments of error. The procedure followed by the district court in selecting the petit jury was proper. There was no error in the refusal of the court to recess so as to recall a witness whose testimony had theretofore been completed. The remark made by the prosecutor regarding the alleged incorrectness of the methadone records on witness King does not rise to the level of error. Additionally, we conclude that the charge given on reasonable doubt was sufficient when taken as a whole to convey the proper concept of reasonable doubt to the jury. There was no violation of the reasonable doubt definition of Holland v. United States, 1954, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150, although the district court charged in terms of refraining rather than hesitating to act. It follows that the court did not err in refusing to give the charge requested by appellant on reasonable doubt.

2

Affirmed.

3

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

4

The petition for Rehearing is Denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is Denied.

*

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