Opinion
No. 4312.
June 30, 1925.
In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge.
Criminal prosecution by the United States against W.P. Black and Roxie Cook. Judgment of conviction, and defendants bring error. Affirmed.
Certiorari denied 46 S. Ct. 25, 70 L. Ed. ___.
S.E.N. Moore, of Knoxville, Tenn., for plaintiffs in error.
Geo. C. Taylor, U.S. Atty., of Knoxville, Tenn.
Before DONAHUE and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
In reference to the first and second assignments of error and the claim made in the brief for plaintiff in error, but not assigned as error in the original petition, that defendant was not in court when sentence was imposed, it is sufficient to say that this court cannot consider claimed errors not exhibited by the record.
A witness offered by the government had been theretofore convicted of one or more offenses and sentenced by the District Court to a term or terms in jail. He testified on cross-examination: That he was still in jail serving such sentence, and that "nobody came down there and told me I could have a little time off if I would testify about Black. * * * They didn't tell me they would make it a little easier on me. I wasn't looking for any time off." It was not prejudicial error for the district attorney to state, after the witness had so testified: "I will say to you I am going to recommend that his time be cut down."
An assignment of error that no evidence was offered tending to prove that the offense charged was a second offense must be overruled, where it appears that during the trial of the cause counsel for the accused, in his presence, admitted in open court that the accused had theretofore been convicted of a like offense.
Where, at the conclusion of the government's evidence, the defendant moves the court for a directed verdict, and the motion is overruled and exception noted, the error, if any, is waived by the introduction of further evidence on behalf of the defendant.
The verdict and judgment in this case are fully sustained by substantial evidence.
Judgment affirmed.