Green v. United States 307 F.2d 678

PER CURIAM.

Appellant was found guilty on two of nine counts charging him and a co-defendant with theft and possession of stolen mail matter. 18 U.S.C. § 1708 (1958). The trial court’s refusal to direct an acquittal as to appellant was clearly correct since the evidence left a distinct issue as to illegal possession of recently stolen property which was for the jury to resolve. Appellant’s contention that the trial court should have given an instruction on circumstantial evidence is also without merit. Defense counsel in the trial court did not object to the court’s refusal to give such an instruction, and later expressed satisfaction with the instructions that were given. Viewing the record as a whole, the trial court’s decision to withhold an instruction on circumstantial evi*679dence could not reasonably be noted by this court under Rule 52(b), Fed.R.Crim.P., 18 U.S.C. See Cogdell v. United States, No. 16696, D.C.Cir., 307 F.2d 176.

Affirmed.

BAZELON, Circuit Judge

(concurring) .

In my view of the prosecution’s evidence, the question whether the court was required to grant appellant’s motion for acquittal is a close one. But I cannot say that the court’s refusal is error. Therefore I concur in affirming the conviction.