Opinion
No. 11913.
June 4, 1947.
Appeal from the District Court of the United States for the Western District of Texas; Ben H. Rice, Jr., Judge.
Jose Hernandez Molina was convicted of unlawfully having acquired marihuana without having paid the transfer tax imposed thereon by law, and he appeals.
Affirmed.
Floyd D. James, of San Antonio, Tex., for appellant.
J.M. Burnett, U.S. Atty., and Joel W. Westbrook, Asst. U.S. Atty., and Henry W. Moursund, Sp. Asst. to Atty. Gen., all of San Antonio, Tex., for the United States.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
Indicted for having unlawfully acquired marihuana without having paid the transfer tax imposed thereon by law, defendant was tried to, and convicted by, a jury. Without having moved for a directed verdict, excepted to the charge, or in any other way challenged the sufficiency of the evidence below, he is here seeking a reversal on the ground that the evidence was insufficient to support the verdict.
It is settled law in the federal courts that an appellate court will not consider the sufficiency of the evidence where the question is not raised in the trial court, unless it is plain that the record is wholly devoid of evidence pointing to guilt and that therefore justice has miscarried, Marco v. United States, 9 Cir., 26 F.2d 315. An examination of this record does not show a miscarriage of justice. On the contrary it shows that there was ample evidence to take the case to the jury, that the trial was without error, and that the judgment should be affirmed.
Affirmed.