FIELDING v. UNITED STATES, 164 F.2d 1022

MILLER, Circuit Judge. This appeal having been considered by the Court on the record, oral arguments and briefs of respective counsel; and it appearing that it was not error for the Government to prove its case without using all the witnesses available to it, Morton v. United States, 79 U.S.App.D.C. 329, 147 F.2d 28, 31, certiorari denied 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428; that no objection was made by counsel for appellant to the introduction in evidence of the exhibits carrying the notations now complained of, as provided by Rule 51, Rules of Criminal Procedure, 18 U.S.C.A. following

section 687, and counsel’s request that the Court call as its own witnesses the available witnesses not used by the Government in order that he might cross examine them was general and did not indicate that such cross-examination was desired for the purpose of explaining the notations on the exhibits referred to, or would be restricted to that field; that the calling of a witness by the Court as the Court’s witness is a matter within the discretion of the trial court, Hirschfeld v. United States, 7 Cir., 54 F.2d 62; United States v.

Pape, 2 Cir., 144 F.2d 778, 782; that such discretion was not abused by the trial court in the trial of this case; that the evidence was sufficient to sustain the verdict; and no reversible error being shown by the record; it is accordingly ordered that the judgment of the District Court be, and is now, affirmed.