Grovene James Finley v. United States

Fifth Circuit

Grovene James Finley v. United States

246 F.2d 604, 1957 U.S. App. LEXIS 3599

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 19, 1957

Docket16429

StatusPublished

Cited by3 cases

This text of 246 F.2d 604 (Grovene James Finley v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Grovene James Finley v. United States, 246 F.2d 604, 1957 U.S. App. LEXIS 3599 (5th Cir. 1957).

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Opinion

PER CURIAM.

Appellant appeals from his conviction of possessing and transporting nontaxpaid distilled spirits, 26 U.S.C.A. §§ 5008(b) (1), 5642.

The action of the trial judge in sustaining a prosecution objection to a question calling for an obviously hearsay answer was eminently proper in view of appellant’s inability to present any acceptable theory under which the answer would have been admissible. Horne v. United States, 5 Cir., 246 F.2d 83. Actually, the particular question was answered anyway and no motion to strike was made or instruction to disregard given.

Appellant’s present complaint that no instruction was given to the jury on the defense of alibi does not require consideration by us since there was neither an objection nor a requested instruction at the trial. Fed.Rules Crim. Proc. rule 30, 18 U.S.C.A.; McDonald v. United States, 5 Cir., 200 F.2d 502; White v. United States, 5 Cir., 200 F.2d 509, certiorari denied 345 U.S. 999, 73 S.Ct. 1142, 97 L.Ed. 1405. Certainly on this record, where little or no evidence is present to support such a charge even if requested, and there is no basis for feeling that an injustice has been done it cannot be said that the failure of the Trial Judge to give it sua sponte is such a plain error as should be noticed under F.R.Crim.P. 52(b). See Williams v. United States, 5 Cir., 208 F.2d 447, certiorari denied 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081.

Affirmed.

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PER CURIAM.

Appellant appeals from his conviction of possessing and transporting nontaxpaid distilled spirits, 26 U.S.C.A. §§ 5008(b) (1), 5642.

The action of the trial judge in sustaining a prosecution objection to a question calling for an obviously hearsay answer was eminently proper in view of appellant’s inability to present any acceptable theory under which the answer would have been admissible. Horne v. United States, 5 Cir., 246 F.2d 83. Actually, the particular question was answered anyway and no motion to strike was made or instruction to disregard given.

Appellant’s present complaint that no instruction was given to the jury on the defense of alibi does not require consideration by us since there was neither an objection nor a requested instruction at the trial. Fed.Rules Crim. Proc. rule 30, 18 U.S.C.A.; McDonald v. United States, 5 Cir., 200 F.2d 502; White v. United States, 5 Cir., 200 F.2d 509, certiorari denied 345 U.S. 999, 73 S.Ct. 1142, 97 L.Ed. 1405. Certainly on this record, where little or no evidence is present to support such a charge even if requested, and there is no basis for feeling that an injustice has been done it cannot be said that the failure of the Trial Judge to give it sua sponte is such a plain error as should be noticed under F.R.Crim.P. 52(b). See Williams v. United States, 5 Cir., 208 F.2d 447, certiorari denied 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081.

Affirmed.

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246 F.2d 604, 1957 U.S. App. LEXIS 3599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grovene-james-finley-v-united-states-ca5-1957.

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