Fred B. Greear, Norton, Va. (Glen M. Williams, Jonesville, on motion), for appellant.
H. Clyde Pearson, Asst. U. S. Atty., Roanoke, Va., for appellee.
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
This is an appeal in a criminal case in which appellant was convicted and sentenced to a term of imprisonment under an indictment charging him and another with removal and concealment of untaxpaid liquor. Bail was denied by the District Judge pending appeal, and appellant has made motion for bail before this court. The only points presented by the appeal relate to the action of the judge in denying motion for a severance and to the sufficiency of the evidence to sustain the conviction. The sufficiency of the evidence was not questioned on the trial, however, by motion to direct a verdict or otherwise, but only after conviction by motion to set aside the verdict and for a new trial. It is too well settled to admit of argument that the granting or denial of both the motion for severance and the motion to set aside the verdict and for a new trial were matters resting in the descretion of the trial judge; and there is nothing to show that the discretion was abused. It is equally well settled that the sufficiency of the evidence to sustain a conviction cannot be reviewed by this court where the question of its sufficiency was not raised in the lower court in advance of conviction. We have examined the record, however, and find that the evidence was amply sufficient to sustain the verdict of the jury and that there was no error in the conduct of the trial.
Motion for bail denied and appeal dismissed.