Three indictments were filed on differing dates in the United States District Court for the Southern District of Cali- fomia, Southern Division (now the United States District Court for the Southern District). The first, No. 33729, named as defendants James Thomas and James (Clarence) LaVerne Currie. When the case was called, the Government announced that James Thomas had died, and moved to dismiss the indictment. This motion was granted.

The second indictment, No. 34738, was in four counts, and named as defendants James (Clarence) LaVerne Currie and James Ewing.

The third, No. 36097, was in two counts, and named James Ewing alone as a defendant, with James Thomas and Jefferson Sutton as named unindicted coconspirators, and certain unknown persons as unnamed conspirators. (This indictment is the only one appearing in the record before us for reasons hereinafter apparent.) It charges in Count I a conspiracy to import heroin and cocaine from Mexico into this country, 21 U.S.C. § 174 , by an overt act of James Thomas on October 29, 1964 (importation of three ounces of cocaine), and in Count II a conspiracy to smuggle marijuana from Mexico into the United States, 21 U.S.C. § 176a, alleging an overt act of James Thomas on March 15, 1963, and overt acts of Jefferson Sutton on December 20, 1963 and February 8, 1964.

The second and third indictments, consisting of six counts were consolidated for trial. R.T. 10.

We adopt the statement of facts presented by appellee:

After trial by jury, Ewing’s motion for acquittal was granted as to the three counts in which he was named in No. 34738, and Count I of No. 36097. He was found guilty of Count II of No. 36097, the marijuana conspiracy count.

Currie was found guilty of Counts I, II and III in No. 34738, but a new trial was granted. The charge against him in Count IV had been previously severed for trial.

Jurisdiction below existed (21 U.S.C. § 176a; 18 U.S.C. § 3231 ), and exists here ( 28 U.S.C. § 1291 ).

Seven errors are alleged by appellant. They are adequately stated by appellee as follows:

I. The Consolidation of the Two Cases

Appellant urges “counsel for both defendants objected to this consolidation ..” R.T. 12-14. This is incorrect. Counsel for Currie objected. R.T. 14, lines 7-10; 20, lines 20-25; 253, lines 6-12. All counsel for appellant Ewing asked for was a continuance, in order to prepare to meet the conspiracy charges. R.T. 27-28. This continuance was granted him, and he was then “happy” to proceed in the trial of both indictments. R.T. 28, lines 6-7.

Appellant has thus waived his objection to the joinder, by failing to object in the district court. Rule 51, Fed.R.Crim.P.; Fiano v. United States, 271 F.2d 88§ (9th Cir. 1959), cert. den. 361 U.S. 964 , 80 S.Ct. 593 , 4 L.Ed.2d 545 (1960); Ramirez v. United States, 294 F.2d 277, 283 (9th Cir. 1961). After the Government’s case was finished, the appellant’s counsel moved for an acquittal solely upon grounds of insufficiency of the evidence, and not for a misjoinder; nor did he move for a severance (R.T. 253-257).

Had there been a timely objection, or motion, by Ewing (as there was on behalf of Currie), the matter would still have been, as appellant concedes, “within the trial court’s discretion,” and “ordinarily not subject to review.” Brief for Appellant at 21. United States v. Haupt, 136 F.2d 661 (7th Cir. 1943), is perfectly good law, based on its own facts, but is here not controlling because such facts do not here exist.

Currie was a defendant in No. 34738, but not in No. 36907. That Currie might have been prejudiced because he was to be tried with Ewing does not necessarily mean Ewing was prejudiced because he was to be tried with Currie. The latter conclusion is not a necessary corollary of the former. We find no error in the court’s refusal to grant Currie’s motion to sever; and no motion on behalf of Ewing was made at any time.

II. The Reference to the Death of Thomas

Although the record before us establishes only inferentially that the trial judge, in reading the indictments to the jury, advised it that the unindicted co-conspirator (James Thomas) was deceased, we accept it as a fact, even if he was not mentioned by name.

Appellant starts with the premise that the fact of such death was immaterial, and hence reference to it was prejudicial error. We cannot agree with such a premise. Even if the premise is correct, we cannot hold, as a matter of law, the fact of death was immaterial. We could agree that “it has no place in the trial” for impeachment purposes, Her-zog v. United States, 226 F.2d 561, 565 (9th Cir. 1955), cert. den. 352 U.S. 844 , 77 S.Ct. 54 , 1 L.Ed.2d 59 (1955), under well settled rules of evidence.

But here no impeachment was attempted. It was the attempted impeachment by use of immaterial and collateral evidence that the court found to be error in Herzog.

Appellant supplies the key when he answers his own question: “What significance then would the jury attach to the statement regarding Thomas’ demise? Perhaps none at all, but perhaps they might think that one or both of the defendants had something to do with his death.”

This possibility seems farfetched, if not ridiculous. No case is cited to support the fact that such an assumption would be probable. A court should take judicial notice of the fact of a party’s death, particularly after a “suggestion of death” has been made. We have no problem in saying “with fair assurance, that the judgment was not substantially swayed by the error,” even if we were to assume it was error for the court to mention it in passing.

Evidence of possession of a revolver in a prosecution for transportation of stolen furs in interstate commerce, Giordano v. United States, 185 F.2d 524 (6th Cir. 1950), is a different matter than proof that a person is deceased. Proof of possession of a gun, when merely collateral, may well be prejudicial to a defendant. See also in this regard Klepper v. United States, 331 F.2d 694 (9th Cir. 1964), and how the holding there was differentiated in Moody v. United States, 376 F.2d 525 (9th Cir. 1967). Nor are the facts here similar to the unnamed case in appellant’s brief where the court found (in a prosecution for possession and sale of heroin) error in the admission of evidence that marijuana was found in defendant’s house one year after the alleged sale of heroin. Brief for Appellant at 10.

The point thus urged approaches the frivolous. In our opinion, it has no merit.

III. The Attempt to Bribe the Government Witness, Marilyn Jackson, Before Trial

This point is supported on appeal by “the same rules” urged in support of II, supra. Her testimony does not tend to prove defendant Ewing’s guilt. But it is some evidence of intent and guilty knowledge, and amounts, if proved, to obstruction of justice, itself a crime, directly connected with this instant trial.

IV. The Impeachment of Jefferson Sutton

This impeachment of a government witness who had recanted his previous testimony a week before the trial, R.T. 208-219, 240-241, was entirely proper. Bieber v. United States, 276 F.2d 709 (9th Cir. 1960).

That Sutton bad confirmed his original testimony two weeks before the trial, R.T. 222-229, and indicated he was in doubt a week before the trial as to what his testimony would be, R.T. 219-220, does not mean the prosecution could not have been “surprised,” in that term’s legal sense. But in any event, the question of the prosecution’s surprise was one for the exercise of the trial court’s discretion. We cannot hold there was any abuse of discretion herein, as a matter of law. There is no merit in this contention.

V. The Testimony of Marilyn Jackson that She had Received Marijuana from Appellant Ewing at His Home (R.T. 68-70)

This testimony was based on her admitted knowledge and previous use of marijuana, upon her rolling the cigarette herself and then seeing what it looked like, and upon the fact that it made her “high” when she smoked it— all of which laid a foundation which made her expert testimony admissible, to be weighed and judged by the jury. Her conclusion that it was marijuana was not binding upon defendant Ewing, but, in the court’s discretion, it was “expert opinion evidence” sufficient to present a question of fact to the jury. It was for the court first, and the jury later, to give such credence to this opinion as seemed justified.

If an ordinary smoker and user of “cigarettes” stated they were made of tobacco, there would probably have been no objection urged. And properly so.

VI. Insufficiency of Proof of Overt Acts

The short answer is that no proof of overt acts is necessary in a charge of conspiracy to smuggle marijuana. United States v. Gardner, 202 F.Supp. 256 (N.D.Cal., 1962), approved, Leyvas v. United States, 371 F.2d 714 , 717 n. 4 (9th Cir. 1967).

VII. Error in the Trial Court’s Comments to the Jury

The court did comment on the evidence. He mentioned two bits of evidence deemed important by him, which had not been discussed by the prosecution.

The comment was proper, but a cautionary instruction was then required. It was given properly, adequately, and fully. The trial judge did not abuse his authority, nor did he assume the role of prosecutor or advocate. He committed no error.

Finding no error on any point urged, we affirm the conviction.

. “Consolidation” refers to the joinder of indictments Nos. 34738 and 36097. . And see lack of previous objections — R.T. 53, lines 7-17, and 57, lines 10-14.