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Luther L. POWELL, Appellant, v. UNITED STATES of America, Appellee.

No. 16925.

United States Court of Appeals District of Columbia Circuit.

Argued June 6, 1962.

Decided June 28, 1962.

Messrs. Milton V. Freeman and John T. Rigby, Washington, D. C. (both appointed by this court) for appellant.

Mr. Harold H. Titus, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Mr. Abbott A. Leban, Asst. U. S. Atty., also entered an appearance for appellee.

Before Wilbur K. Miller, Chief Judge, and Edgerton and Fahy, Circuit Judges.

PER CURIAM.

Appellant was indicted for unauthorized use of a motor vehicle on or about March 19, 1961. At his trial a policeman testified that he saw appellant in the vehicle on that date. The opening statement of appellant’s trial counsel asserted an alibi. The court allowed the prosecution to reopen its case and recall the policeman. He testified that he had been mistaken about the date and that the incident occurred on March 23, as he had testified before the grand jury and as a police “run book" showed. The court continued the case for a day to “give the defendant an opportunity to prepare in connection with the 23rd of March instead of the 19th of March.” Appellant testified to alibis for both dates. There was no abuse of discretion.

The indictment contained a second count which charged appellant with *397unauthorized use of a second car on a second date. He was convicted and sentenced to imprisonment of one to three years on both counts. Since the sentences run concurrently we need not consider his contentions regarding the second count.

Affirmed.

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