Opinion
No. 12964.
Argued June 9, 1969.
Decided June 19, 1969.
Herbert H. Thorp, Fayetteville, N.C. (on brief) for appellant.
W. Arnold Smith, Asst. U.S. Atty. (Robert H. Cowen, U.S. Atty., on brief) for appellee.
Before SOBELOFF, BOREMAN and CRAVEN, Circuit Judges.
Seeking reversal of his conviction for armed bank robbery in violation of 18 U.S.C. § 2113(d), the appellant challenges as prejudicial a portion of the District Court's charge to the jury. The jury was informed that, in determining guilt or innocence, it might consider any false exculpatory statements made by the defendant. Since the record reveals no evidentiary basis for the instruction, this portion of the court's charge is clearly irrelevant.
Rule 30 of the Federal Rules of Criminal Procedure, however, precludes the assignment as error of any jury instruction not objected to at trial, and no such objection was made in the present case. It is not urged, nor could it be, that the extraneous portion of the charge was so prejudicial to the defendant as to constitute "plain error" in the sense of Rule 52(b) warranting notice and reversal by this court despite the appellant's failure to comply with Rule 30.
At oral argument, appellant's counsel abandoned as without substance an additional issue raised in his brief, the admissibility of a palm print in evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
The conviction is accordingly
Affirmed.