Opinion · Court of Appeals for the Sixth Circuit

Billiter v. United States

23 F.2d 678

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1928-01-17
Topic
general

PER CURIAM. The errors assigned being examined, we find only one requiring comment. Upon the argument to the jury, the district attorney indulged in denunciation of the respondent and comment upon his bad character, going distinctly beyond permissible limits. Volkmor v. U.

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BILLITER v. UNITED STATES,23 F.2d 678(6th Cir. 1928)
BILLITER v. UNITED STATES.
No. 5044.
Circuit Court of Appeals, Sixth Circuit.
January 17, 1928.
In Error to the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.

Proceeding by the United States against Henry Billiter. To review the judgment, defendant brings error. Affirmed.
Larry Bevan, of Toledo, Ohio, for plaintiff in error.

Harry G. Levey, Asst. U.S. Atty., of Toledo, Ohio.
Before DENISON and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
PER CURIAM.
The errors assigned being examined, we find only one requiring comment. Upon the argument to the jury, the district attorney indulged in denunciation of the respondent and comment upon his bad character, going distinctly beyond permissible limits. Volkmor v. U.S. (C.C.A.)13 F.2d 594. The respondent's counsel objected to this comment as being misconduct by the district attorney. The court said, "That mayPage 679be withdrawn," and the district attorney thereupon "withdrew the remark."

We need not decide whether a reversal on this account would be necessary, if the question were properly preserved. In such a situation, the harm done may sometimes be cured by a mere withdrawal of the offending language, and sometimes it would be the duty of the court to caution the jury emphatically and to reprimand the offending counsel; possibly sometimes it would be beyond cure, and would require the entry of a mistrial. In this case the judge considered a withdrawal to be remedy enough, and gave respondent that benefit. If counsel thought this remedy was insufficient, he should have said so; the record contains nothing to show that he was not content with the ruling which was made in response to his objection, and which clearly showed the intent of the court to give the relief thought necessary.

The judgment is affirmed.