Ellis Ernest Marsh v. United States

Appellant makes three assignments of error. We have examined each and find no basis for reversal.

Initially, appellant complains of certain comments made by the court in the presence of the jury. An accomplice of appellant in this case, who had been convicted in another criminal case in the District of Oregon and who was to be sentenced at a later date by the same district judge before whom this cáse was tried, testified as a witness for the government. It is clear from the record that on cross examination of the accomplice, defense counsel, by the form of his questions, conveyed to the jury the suggestion that the accomplice witness might be dealt with leniently by the court because he cooperated with the government and testified against appellant.

The court commented as follows:

There followed this discussion between defense counsel and the court;

The record is clear that defense counsel not only voiced no objection but actually expressed his agreement with the court’s remarks. While defense counsel was entitled to ask the accomplice whether he expected leniency from the court, since the witness’ state of mind bears upon his credibility, the Judge’s remarks do not, as…