McDaniel v. United States

¶4PER CURIAM.

¶5Convicted and sentenced on two counts of an indictment charging violations of See. 912, Title 18,1 defendant has appealed, urging three grounds2 of error. No claim is made, indeed none could be, that the evidence was insufficient. The government’s evidence, that the defendant did commit the offenses charged, was positive and convincing, and the defendant offered no testimony.

¶6The record standing thus, it was incumbent upon appellant to show clearly and convincingly that error of a prejudicial nature was committed, and this ■he wholly failed to do.

¶7The claim of a mistrial, based upon the volunteered statement of a government witness, thát he had the record of court martial convictions, was not such error, under the record, both because it had no bearing on the issue to be tried and was not sufficiently definite to reflect upon defendant, and because the court immediately instructed the witness not to volunteer information and gave full and adequate instructions to the jury to disregard the statement, Goldstein v. United States, 8 Cir., 63 F.2d 609; United States v. Potash, 2 Cir., 118 F.2d 54; Montgomery v. United States, 5 Cir., 203 F.2d 887; Coulston v. United States, 10 Cir., 51 F.2d 178; and Hilliard v. United States, 4 Cir., 121 F.2d 992.

¶8Appellant’s second claim of error, that his cross-examination was unduly limited, finds no support in the record. On the contrary, the district judge accorded him his right of cross-examination in fullest measure. If there was any abuse of discretion in the rulings, it was in the direction of giving defendant too much, instead of too little, latitude.

¶9Appellant’s final point against the charge finds a complete answer in the controlling decisions, in accordance with which the court charged, United States v. Leopwitch, 318 U.S. 702, 63 S.Ct. 914, 87 L.Ed. 1091, and United States v. Barnow, 239 U.S. 74, 77, 36 S.Ct. 19, 60 L.Ed. 155.3

¶10The judgment was right. It is affirmed.