317 F2d 69 Brainin v. United States

317 F.2d 69

James Frederick BRAININ, Appellant,
UNITED STATES of America, Appellee.

No. 20073.

United States Court of Appeals Fifth Circuit.

May 8, 1963.

James Frederick Brainin, Leavenworth, Kan., Samuel D. McDaniel, Austin, Tex., for appellant.

Morton L. Susman, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, RIVES and GEWIN, Circuit Judges.



Appellant's motion for rehearing is neither more nor less than an effort to have this court redetermine fact issues already settled by the jury verdict. In short, in complete disregard of the controlling rule that on appeal the evidence is taken most strongly in favor of the jury's verdict, the appellant's argument consists of an attack upon the credibility of Thrift, the government's witness.


Stating, "The conviction appealed from rests on the testimony of one man, Robert G. Thrift.", appellant seeks thus to attack his testimony: "He is a disreputable person." "Thrift had a criminal record".


This argument, which should have been and no doubt was made to the jury, has no place here. If, as appellant must and does concede, Thrift testified to facts which supported the verdict, this, as far as we are concerned, ends the matter. The jury had a right to credit or discredit Thrift, and it is not competent for the appellant in this court to attack the verdict as without evidence to support it.


Appellant offered no evidence, either by his own testimony or that of other witnesses. Apparently of the view that a defendant can refuse to take the stand and that that refusal in some way contradicts or discredits the testimony of the government, appellant attacks the verdict, as without evidence in its support, on credibility issues which were for, and alone for, the jury.


It will serve no useful purpose to cite cases in support of the view that the jury having credited the testimony of the witness Thrift, his credibility is not an issue on this appeal. The motion for rehearing is, therefore,