McCarver v. United States 3 F.2d 1020

PER CURIAM.

McCarver was a (so-called) narcotic inspector. A prisoner taken by the Detroit police in a raid, and supposed to be “wanted” for a federal offense, was informally, but actually, turned over to the United States marshal, and by him sent to and left with McCarver. An assault by one upon the other, and an affray, followed, in which the prisoner was badly beaten.- McCarver was indicted, the fact issue as to initial fault was fairly ' submitted to the jury, and he was found guilty. The only exception taken was to part of the charge. That portion is in obvious response to the argument which defendant’s counsel had made to the jury, and the charge was not erroneous, unless it was not thus justified. The record does not show the argument, and we cannot presume error. The fact that there was no stenographic record of a vital fact on the trial does not excuse, its omission from the record for review. If the-argument was what we are now told it was, the response and comment by the court were wholly justified. There is no rule by which the offense of counsel in making an unfit argument is finally condoned, if he is -not then and there stopped by the court and reproved. The court may well, in its discretion, reserve the matter for treatment in the charge. The court’s error of fact, in referring the custody by the marshal as being after due arrest, when it was really less formal, was not substantial. The judgment is affirmed.