352 F2d 521 Ray v. United States

352 F.2d 521

James Lawrence RAY, Appellant,
UNITED STATES of America, Appellee.

No. 21314.

United States Court of Appeals Fifth Circuit.

Nov. 12, 1965.

Joseph D. Gordon, Jr., Liberty, Miss., for appellant.

Robert E. Hauberg, U.S. Atty., Donald E. Strange, Asst. U.S. Atty., Jackson, Miss., for appellee.

Before MARIS,1 RIVES and BELL, Circuit Judges.


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The appellant-defendant was convicted of transporting and causing to be transported a stolen motor vehicle in interstate commerce in violation of section 2312, Title 18 United States Code. On appeal he makes two contentions.


The first is that the district court erred in denying his motion for a continuance on account of the absence of the witness, Henry Hance. The United States Marshal's return on the subpoena indicated that the witness could not be found, followed by the word 'moved.' After hearing the defendant testify in support of his motion for a continuance, the court overruled the motion, stating that the witness' testimony would be cumulative and that there was no showing that the witness could ever be produced. As said in Babb v. United States, 5 Cir. 1954, 210 F.2d 473, 475:


'A motion for continuance is directed to the discretion of the trial court, and the court did not abuse its discretion in this case. Isaacs v. United States, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229.'


In the instant case also, the court did not abuse its discretion.


The second assignment of error is that the jury verdict was contrary to the facts and the evidence and that the court erred in denying the motion to set aside the verdict. An examination of the record convinces us that the evidence was sufficient to sustain the verdict of guilty.


The judgment is therefore affirmed.


Of the Third Circuit, sitting by designation