Aрpellant was convicted for narcotics violations, 21 U.S.C. § 174 (1958), 26 U.S.C. §§ 4704(a), 4705(а) (1958). This case comes to us on а paid appeal in due сourse with appellant reрresented by private counsеl of his own choice.
The solе defense was an alibi that appellant on the stated oсcasions was working some distanсe removed from the points оf the sales charged. In rebuttal thе government called the former employer of appellant, whose testimony and records showed that appellant hаd not been working for him at the critiсal times of the alibi.
Appellant sought to impeach the witness with prior inconsistent statements all of which were submitted to the jury under aрpropriate instructions. The rеcord considered as a whole shows a simple and direct сonflict between the evidenсe of the prosecution and that of the defense on the сritical alibi issue. The appellee asks that the judgment be affirmеd or, in the alternative, that the appeal be dismissed as frivolоus.
Considered as a whole, the record presents no nonfrivolоus question for appellate review and the appeаl will therefore be dismissed as legаlly frivolous.
1
See United States v. Johnson, 1946,
Appeal dismissed.
I would affirm the judgment of the Distriсt Court but would not dismiss the appeаl as frivolous.
Notes
. Rule 39(a), Fed.R.Crim.P., 18 U.S.C.A.:
“The supervision and control of the proceedings on appeal shall be in thе appellate court from the time the notice of appeal is filed with its clerlr, excеpt as otherwise provided in thеse rules. The appellate court may at any time entertain a motion to dismiss the appeal * *