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TABOR v. UNITED STATES.

No. 5893.

United States Court of Appeals Fourth Circuit.

Argued June 13, 1949.

Decided July 5, 1949.

Glenn W. Ruebush and Julian K. Hickman, of Harrisonburg, Va., on the brief, for appellant.

R. Roy Rush, Asst. U. S. Atty., Roanoke, Va. (Howard C. Gilmer, Jr., U. S. Atty., Pulaski, Va., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PER CURIAM.

This is an appeal in a criminal case. Defendant was indicted under 18 U.S.C.A. § 2312 for transporting a stolen motor vehicle between Lorain, Ohio, and Augusta County, Virginia. The evidence in the record amply sustains the charge of the indictment, and the judge in submitting the case to the jury carefully and correctly explained the issues and the law relating thereto. The defendant was represented in the court below and in this court by able counsel; and we see no reason to disturb his conviction. The fact that he was ordered to trial shortly after the finding of the indictment furnishes no ground of complaint in view of the fact that he had been advised of the charges against him for two months in advance of the trial, had employed counsel and had had ample opportunity to summon witnesses and prepare his defense.

In moving for a continuance in the court below defendant’s counsel stated that they desired to secure the attendance of additional witnesses. There was no sufficient showing as to what the testimony of these witnesses would be and the judge denied the motion; but on the hearing of the case here we gave defendant more than two weeks to file affidavits of any witnesses he desired to produce, to the end that we might order a new trial in the interest of justice, if convinced that there was material evidence for the defense which had not been produced. He has filed affidavits of no one except himself. In one affidavit he sets forth what he says a Mrs. Morris would swear, if present; but it is perfectly clear that this testimony, if it had been given on the trial, would not have affected the result. Counter affidavits filed by the prosecution, including an affidavit from Mrs. Morris, show beyond question that there is no occasion to order a new trial.

The affidavits will be filed as a part of the record in the case, and the judgment below will be affirmed.

Affirmed.

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