Opinion
No. 11368.
April 30, 1953.
C.P.J. Mooney and Eugene P. Boyd, Memphis, Tenn., on the brief, for appellant.
John Brown, Thomas C. Farnsworth and Edward N. Vaden, Memphis, Tenn., for appellee.
Before SIMONS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.
Appellant's petition for rehearing having been considered by the Court;
And the Court being of the opinion that the evidence complained of by appellant concerning collateral transactions on the part of the appellant was relevant as bearing upon the question of fraudulent intent, and there was no abuse of discretion on the part of the trial judge in permitting it to be considered by the jury under proper instructions by the Court; Penn Mutual Life Ins. Co. v. Mechanics' Savings Bank Trust Co., 6 Cir., 72 F. 413, 422; Hartzell v. United States, 8 Cir., 72 F.2d 569, 584; Banning v. United States, 6 Cir., 130 F.2d 330, 337-338;
That the nature and degree of control by the Court of the conduct of government counsel and witnesses during the course of the trial, are matters addressed to the discretion of the Trial Judge; Twachtman v. Connelly, 6 Cir., 106 F.2d 501, 509; that the alleged unresponsive answers of certain witnesses had no substantial adverse effect upon the fairness of the trial; Stoppelli v. United States, 9 Cir., 183 F.2d 391, 395; and, in view of the fact that such matters are transitory in nature and are not likely to reoccur in the same form, if at all, in the next trial, it is inadvisable for this Court to attempt to rule on such questions in advance;
And, having again considered the other matters urged upon us by appellants, and being of the opinion that it is sufficient for the purposes of the retrial to call to the attention of the Trial Judge the possibility of reversible error in communicating to the jury through the medium of a deputy marshal; Ray v. United States, 8 Cir., 114 F.2d 508, 512, 513, certiorari denied, 311 U.S. 709, 61 S.Ct. 318, 85 L.Ed. 461; Dodge v. United States, 2 Cir., 258 F. 300, 7 L.R.A. 1510, certiorari denied, 250 U.S. 660, 40 S.Ct. 10, 63 L.Ed. 1194.
It is ordered that the petition for rehearing be denied.
McALLISTER, Circuit Judge, is of the opinion that the petition for rehearing should be granted for the reasons stated in his dissenting opinion.