Shores

This appeal is from a judgment entered upon the conviction of appellant on eighteen counts of an indictment charging him with using the mails to defraud and one count charging conspiracy to do so. He was sentenced on each count, sentences to run concurrently, a total of two years. Upon this appeal he assigns two errors': First, that the court erred in overruling his objections to the introduction of letters and pamphlets covered :by the counts for mailing on the ground that such letters and pamphlets were not shown to have been mailed by appellant or under his authority; and, second, that the court erred in denying his application for a continuance.

As to the first assignment, it is sufficient to point out that the sentence on the conspiracy count was for two years, and, consequently, error upon the other counts was immaterial, as the sentences were less than and were to run concurrently with the sentence on the conspiracy count. Furthermore, the claim that the appellant had severed his connection with the conspiracy before these letters and pamphlets were mailed was based upon the testimony of a codefendant which hardly goes so far and which the jury may well have…

(dissenting).

“There will be no continuance in this case,” was the trial judge’s arbitrary and precluding statement without any inquiry of the appointee’s fitness or of his possible acceptance by appellant as counsel of his choice. Such a predisposition of an issue of constitutional right tendered by the uncontradicted affidavits in a motion which is unopposed by the prosecution transcends a mere question of discretion. Though the paramount fact in the case, the precluding effect of this ruling is not discussed in Judge WILBUR’S opinion, much less that it began the hearing on the issue and shut off all protest.

Even if the record did not thus clearly show the denial of the constitutional right, I cannot concur in the statement of the principles relied upon for the determination of the issue presenting the claim to the right.

Primarily, therefore, I dissent from the statement of the ground of appellant’s appeal in the first paragraph of that opinion. In its essence the ground is not “that the court erred in denying his application for a continuance.” It is that the court deprived appellant of his constitutional right to a “fair opportunity to secure counsel of his own choice”…

(concurring).

Appellant filed in the court below seven assignments of error, of which he has in this court abandoned all but two. He says in his brief: “It is not proposed in this brief to urge all of the errors assigned, but only the assignments designated IV and VI in the assignment of errors.”

Assignment IV is “That the court erred in overruling the defendant’s objections to the introduction of letters and pamphlets, on the ground that such letters, pamphlets and communications were not shown to have been mailed by the defendant or under his authority.” This assignment does not quote the full substance of the evidence objected to, as required by our Rule 11, and, for that reason, should be disregarded. Levine v. United States (C.C.A.9) 79 F.(2d) 364, 367 .

Assignment VI is “That the court erred in denying defendant’s motion for a postponement of the trial of said matter • in the absence of defendant’s counsel.” The ruling complained of was not excepted to. This assignment, therefore, should be disregarded. Levine v. United States, 79 F.(2d) 364, 369 .

There is nothing else in the case. The much-discussed action of the trial court in *948 appointing counsel for appellant was…