United States of America, Plaintiff-appellee, v. Carey Wallace, Defendant-appellant, 417 F.2d 522 (5th Cir. 1969)

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US Court of Appeals for the Fifth Circuit - 417 F.2d 522 (5th Cir. 1969) October 29, 1969

James R. Venable, Atlanta, Ga., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Theodore E. Smith, Charles B. Lewis, Jr., Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.


This appeal is from a conviction for possessing and transporting non-tax-paid liquor. 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, 409 F.2d 804 (5th Cir. 1969).

The only issue is sufficiency of evidence to take the case to the jury. Motion for judgment of acquittal was made at the conclusion of the government's case and denied. The defense offered evidence, and the motion was not renewed at the conclusion of all the evidence. This waived objection to the denial of the motion, and sufficiency of the evidence is before us only under the plain error rule. United States v. Calderon, 348 U.S. 160, 75 S. Ct. 186, 99 L. Ed. 202 (1954); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).

There was no plain error in this case. The evidence of arresting officers at the scene of appellant's arrest, plus appellant's own post-arrest statements, was adequate to take the case to the jury even if the motion had been renewed.