431 F.2d 941: United States of America, Plaintiff-appellee, v. Alexander Tagle Perez, Defendant-appellant
United States Court of Appeals, Ninth Circuit. - 431 F.2d 941
Aug. 20, 1970, Rehearing Denied Sept. 16, 1970
Wilfred H. Humphries (argued), of Bicoy & Yamane, Honolulu, Hawaii, for defendant-appellant.
Harold M. Fong (argued), Asst. U.S. Atty., Robert K. Fukuda, U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.
Before BARNES, HAMLEY and CARTER, Circuit Judges.
BARNES, Circuit Judge:
Appellant was charged and convicted on two counts, Eleven and Twelve, of a multicount indictment charging violations of narcotic laws. He raises three alleged errors: (1) the statement of the court that co-defendant Diaz was 'involved in a whole series of heroin transactions'; (2) the alleged improper comment by the court on the evidence; and (3) error in instructions given the jury on the identification of appellant.
We find no merit in the allegations of error. The statement of the trial judge as to Diaz gave no more information to the jury than had Counts Eleven and Twelve been read to it, as they well might have been.1 The trial judge is entitled to comment on the evidence at the trial and so long as the proper admonition was given by the court to the jury (as it was here, without objection as to inadequacy), such comment was not in error. Moreover, it was fair comment.
Finally, there was no offer of an instruction by the defendant as to identification, no request that one be given, and no objection to any instruction given. Under Rule 30, Federal Rules of Criminal Procedure, there was no error.
The record does not contain that portion of the record showing the impanelment of the jury