Keith Elvis Ward, Appellant, v. United States of America, Appellee, 356 F.2d 938 (5th Cir. 1966)

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US Court of Appeals for the Fifth Circuit - 356 F.2d 938 (5th Cir. 1966) February 11, 1966

Young J. Simmons, Ocala, Fla., for appellant.

James H. Walsh, Asst. U. S. Atty., Jacksonville, Fla., Donald I. Bierman, Atty., Dept. of Justice, Washington, D. C., Edward F. Boardman, U. S. Atty., for appellee.

Before JONES and BROWN, Circuit Judges, and BREWSTER, District Judge.


The appellant seeks a reversal of a two count conviction for embezzling funds of a national bank for alleged insufficiency of the evidence and improper argument by government counsel.

The question of the sufficiency of the evidence turns upon the competency of the summary testimony of the head bookkeeper of the bank tracing the misappropriated funds to the appellant's checking account in the bank. The appellant claims that such testimony was secondary evidence and therefore incompetent. We are of the opinion that the records produced in court during the trial, taken with those furnished counsel for the appellant, satisfied the requirement that the records on which summary testimony of a bookkeeper is based must be made available to the accused. No objection was ever made during the trial to the adequacy of the records so made available, to the sufficiency of time to examine them, or to the admissibility of the summary testimony. There is no merit in this contention by the appellant. Jones on Evidence, 5th Ed. #234, p. 452; Barrick v. Pratt, 5 Cir., 32 F.2d 732 (1929); Greenhill v. United States, 5 Cir., 298 F.2d 405 (1962).

We do not put the same construction as the appellant does on the challenged argument by the prosecutor. When the argument is taken to mean what we think it clearly does, it was based on a legitimate inference from the evidence.

The judgment is affirmed.