229 F2d 155 Durant v. United States

229 F.2d 155

James DURANT, Appellant,


UNITED STATES of America, Appellee.

No. 7114.

United States Court of Appeals Fourth Circuit.

Argued January 4, 1956.

Decided January 11, 1956.

Charles L. Abernethy, Jr., New Bern, N. C., for appellant.

Irvin B. Tucker, Jr., Asst. U. S. Atty., Raleigh, N. C., Julian T. Gaskill, U. S. Atty., Goldsboro, N. C., on brief, for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


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This is an appeal in a criminal case in which defendant, who was represented by able counsel, waived jury trial and was convicted by the judge of removing and concealing non tax paid whiskey in violation of 26 U.S.C. § 7206(4). The only question raised by the appeal relates to the propriety of questions asked by the trial judge of the witness Cannon, who was arrested while transporting the whiskey and who told the officers that he was transporting it for the defendant and gave them a written statement to that effect. When this witness attempted to repudiate the statement that he had made, he was questioned sharply by the trial judge with respect to the matter and again stated that he was transporting the whiskey for defendant. No objection was interposed at the time to these questions by the judge, which were entirely proper as the witness was manifestly placing himself in contempt of court by the way in which he was answering the questions propounded to him by the United States Attorney. It was for the judge to say whether he believed the witness or not; and, quite apart from the testimony of the witness, which was corroborated by the statement given to the officers, there was ample evidence to sustain the conviction. No exceptions were taken upon the trial and the case is not one in which we would be warranted in granting a new trial for error not assigned. We do not think that either error or denial of due process is shown by the record of the trial.