INKS v. UNITED STATES, 290 F. 203

PER CURIAM. In federal practice error cannot be predicated upon the action of the trial j’udge in overruling a motion for a new trial. Such a motion invokes only his discretionary action in approving or vacating a verdict.

If the real contention of a defendant in a criminal case is that the government failed to prove one or more of the material allegations of the indictment, the foundation for a proper assignment of error must be laid in the trial court by moving at the close of all of the evidence in the case, and when the case is ábout to be submitted to the jury, that the judge direct the jury to return a verdict for the defendant. In the present case no such foundation was laid, and no assignment of error was addressed to such a question, even‘if the foundation had been properly laid in the trial court.

But, passing the failure of plaintiff in error to preserve the question and to present it in this court in a way required by the adjective law, we permitted a full discussion of the evidence at the oral argument, and have followed that discussion with examination of the bill of. exceptions containing the evidence, and conclude that there was sufficient evidence to warrant the trial judge in submitting the case to the jury.

Plaintiff in error is also mistaken in the notion that the transcript of what the witnesses said at the trial may be resorted to by us for the purpose of determining whether the evidence should satisfy a jury beyond a reasonable doubt. The function of weighing the evidence belongs exclusively to the jury, except as it may he reviewed by the trial judge in disposing of a motion for a new trial. Applebaum v. United States (C. C. A.) 274 Fed. 43. The judgment is affirmed.