204 F2d 926 Hayden v. United States

204 F.2d 926




No. 11758.

United States Court of Appeals Sixth Circuit.

May 1, 1953.

Ralph Skilken and Harold L. Shellenberger, Dayton, Ohio, for appellant.

Ray J. O'Donnell, U. S. Atty., Cincinnati, Ohio, for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.


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The appellant in this case was convicted on both counts of a two-count indictment charging violation of section 2314, Title 18, U.S.C.A., and was sentenced to five years imprisonment on each count, the sentences "to run concurrently".


The record brought up by appellant for consideration on appeal contains no evidence relating to the substantive offense charged in the second count of the indictment. A court of review assumes that the evidence sustains the verdict where no transcript of the testimony is included in the record on appeal. Manning v. United States, 8 Cir., 31 F.2d 911; Cholacoff v. United States, 6 Cir., 10 F.2d 503; Thomas v. United States, 8 Cir., 188 F.2d 6; United States v. Bent, 8 Cir., 175 F.2d 397; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 524.


Inasmuch as the appellant was sentenced to five years imprisonment on each count of the indictment, the sentences to run concurrently, even if there were manifest error as to his conviction on the first count, which we do not mean to indicate, he would suffer no prejudice from the five-year sentence on the second count for the reason that the assumption is that there was substantial evidence to support his conviction on that count, and no error relating thereto appears in the record.


Accordingly, it is ordered that the judgment of conviction and sentence on the second count be affirmed.