McCannon v. United States , 22 F.2d 806 ( 1927 )

VAN VALKENBURGH, Circuit Judge.

Plaintiff in error was tried in the District Court for the Western District of Oklahoma upon the single charge of selling intoxicating liquor contrary to law. In his brief counsel makes this statement:

“The only proposition urged for a reversal in this ease will he based upon the second assignment of error, which challenges the existence of any substantial evidence to sustain the conviction.”

The case then falls within the rule, so often announced by this court, that an appellate court will not decide the question of the sufficiency of the evidence, in the absence of a request for an instructed verdict, unless there is a total absence of evidence and the court is satisfied that there has been a miscarriage of justice. Feinberg v. United States (C. C. A. 8) 2 F.(2d) 955; Critzer v. United States (C. C. A. 9) 8 F.(2d) 266; Palazini v. United States (C. C. A. 1) 14 F.(2d) 886.

Not only was no demurrer interposed to the government’s evidence at the close of the government’s case, but neither demurrer was filed nor request made for a directed verdict of not guilty at the close of all the evidence. An inspection of the record discloses that there was ample evidence to support the verdict and no miscarriage of justice is perceived.

The judgment accordingly should be and is affirmed.