decided.: May 23, 1958.
UNITED STATES OF AMERICA
WILLIAM H. DANIELS, APPELLANT.
Before MARIS, KALODNER and STALEY, Circuit Judges.
This defendant who has appealed from his conviction in the district court of transferring marihuana not in pursuance of a lawful written order asserts two grounds in support of his appeal. The first is that his constitutional rights were violated because the Government failed to record and transcribe the testimony of the witnesses before the grand jury which indicted him and furnish him with a copy of it. However the defendant, upon being informed at his trial that no record of the grand jury testimony of the government witnesses had been taken, voluntarily withdrew his request for that testimony. He, therefore, has laid no basis for the contention which he makes for the first time in this court and we may not consider it.
The defendant's other contention is that the verdict of guilty was not supported by substantial evidence. We have examined the testimony and find the defendant's contention to be so wholly lacking in merit as to border on the frivolous. It is true that there was conflicting evidence but it was the function of the jury to resolve those conflicts and their verdict is amply supported by substantial evidence.
The judgment of the district court will be affirmed.
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