United States of America, Plaintiff-appellee, v. William Ezria Powell, Defendant-appellant, 413 F.2d 1030 (5th Cir. 1969)

Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I.

This appeal is from a judgment of conviction entered on a jury verdict of guilty. The sole assignment of error rests on the proposition that the district court, in charging the jury, confused overt acts under a conspiracy count with the substantive counts of the same indictment. Appellant was convicted on substantive count seven charging a violation of the statutes relating to non-taxpaid liquor. The same activity alleged there was set out as an overt act under the conspiracy count but there was no overt act numbered seven.

The charge was confused by the court's reference in one instance to the substantive counts of the indictment as overt act counts. The jury at first returned only a partial verdict. Count seven was not considered. The jury was recharged and after further deliberation returned a verdict, in terms of sufficient clarity, finding appellant guilty as charged in count seven. We are convinced that the confusion in the charge such as it was, did not rise to the level of error.

Affirmed.