Donald Lannom v. United States

Appellee’s motion to dismiss the appeal as moot, on the ground that appellant “has jumped bail and is a fugitive,” is denied.

Appellant takes this appeal from a judgment of conviction of a two count indictment charging the aiding and abetting of the importation and subsequently the concealment and transportation by two joint defendants of 198 pounds of marijuana. 18 U.S.C. §§ 2 , 3231, 21 U.S.C. § 176a. Certain joint defendants testified for the government.

Jurisdiction here rests on 28 U.S.C. § 1291 .

Two points only are raised on this" appeal. We find them each without merit.

The first point urged is that the trial, court erred in refusing to give an instruction “that the failure of the prosecution to call witnesses available to maintain its burden of proof gave rise to a presumption that these witnesses would testify against the government.”

Appellant’s interpretation of this theory or rule of law is over broad, and omits a vital, qualifying adjective. In citing and quoting the 1893 case of Graves v. United States, 150 U.S. 118 , 14 S.Ct. 40 , 37 L.Ed. 1021 , no mention is made of, nor consideration had for, the word “peculiarly.”

The witnesses which the appellant charges…