United States of America, Plaintiff-appellee, v. Alex Johnson, Defendant-appellant, 314 F.2d 49 (6th Cir. 1963)

Lawrence W. Massey, Detroit, Mich., for appellant.

Paul J. Komives, Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee.

Before CECIL, Chief Judge, BOYD, District Judge, and DARR, Senior District Judge.

The appeal is from a judgment based on a jury verdict of guilty on a four count indictment charging in two counts the unlawful sale of narcotics and in two counts the unlawful possession of narcotics. A sentence of six years on each count was administered, the sentences to run concurrently.

As no appendix was made or filed, the entire transcript has been read and considered.

To reverse the judgment the appellant presents three questions, but actually there are only two: One charges the District Judge with error in not sustaining appellant's motion for judgment of acquittal and the other charges error in the admission of evidence of the Narcotic Agent in identifying the appellant by his voice.

Only two witnesses on the facts were introduced and these by the Government. One was a person who had dealt in narcotics and was an addict, who testified to facts plainly implicating the appellant with the unlawful transactions, to-wit, the possession and sale of narcotics on July 8, 1961 and possession and sale of narcotics on July 9, 1961. This witness was solidly corroborated by the testimony of a United States Narcotic Agent.

There was substantial evidence to submit to the jury and the District Judge was correct in denying appellant's motion for a judgment of acquittal.

The identification of the voice of the appellant by the Narcotic Agent was after he had heard the voice coming from a radio transmitter to a radio receiver. The agent said that the voice was very distinctive and he unhesitatingly identified the voice as being appellant's after he heard appellant's voice subsequent to the reception by radio.

The District Judge made no error in admitting this testimony for the consideration of the jury.

It is noted that the only two witnesses who testified on the question of guilt or innocence were offered by the Government and that the appellant presented no proof of his innocence or explanation for the possession of narcotics.

The record indicates a fair trial carefully conducted by the District Judge, who gave clear and proper instructions to the jury.

Therefore, it is ORDERED and ADJUDGED that the judgment of the District Court is in all things affirmed.