United States v. Emelda Smith

427 F.2d 1164

Opinions

PER CURIAM:

The judgment appealed from is affirmed.

On the point of failure of proof, whatever shortage of direct evidence there is, sufficient circumstantial evidence is found to give the necessary inferences and to find guilt beyond a reasonable doubt. Also, disbelief by the jury of defendant’s testimony would here present some damaging affirmative inferences.

The decision in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), vitiates in this heroin case defendant’s point on the application of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

The trial court gave an instruction on aiding and abetting to which objection was made. We are inclined to believe that the instruction was not inappropriate, but if it was not required, we would consider it really harmless.