BLACK et al. v. UNITED STATES

BLACK et al. v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. June 30, 1925. No. 4312. 1. Criminal law <§=l 114(1) — Errors not shown by Record cannot be reviewed. Claimed errors, not appearing from the record, cannot be considered by the appellate court. 2. Criminal law <§=720(5) — Statement of district attorney held not prejudicial error. Where a witness for the prosecution, who. was then in jail serving a sentence, testified that he had not been promised any leniency because of his testimony, a statement by the district attorney that he would recommend that the time of the witness be cut down held not prejudicial error. 3. Criminal lav/ <§=901 — Motion for directed verdict waived by introduction of evidence. A motion by defendant for directed verdict at the close of the government’s evidence is waived by the introduction of evidence by defendant. In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon. Hieks, 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. [MAJORITY — PER CURIAM.] PER CURIAM. 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 he cut down.” An assignment of error that no evidence was offered tending to prove that the offense charged was a second offense must be overrated, 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 conchision 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.