Before SCHNACKENBERG, KILEY and MAJOR, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
On the verdict of a jury, the district court entered a judgment convicting George Mitchell, defendant, on two counts of an indictment charging illegal sales of marijuana, in violation of § 4742(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4742(a), and on two counts, for facilitating the transportation and concealment of marijuana, in violation of 21 U.S.C.A. § 176a, as added July 18, 1956.
Motion by defendant for a new trial was denied. Defendant was sentenced to imprisonment for five years. He has appealed.
In all proceedings in the district court, defendant was represented by counsel of his own choice.
On the hearing of the motion for a new trial, one of the jurors, Margaret H. Supko, was examined by the court. She testified, inter alia, that she was a resident of Racine, Wisconsin, and a subscriber to the Racine Journal-Times. The court called her attention to certain articles therein, submitted by counsel for defendant, who suggested that she had read them prior to and during the course of defendant's trial.
Under examination by defendant's counsel, Mrs. Supko stated, inter alia, that she recognized one article, dated March 16, 1962,*fn1 which pertained to "some Mexicans" who "were arrested in a narcotics ring". She added that she partly read the newspaper, adding "I always do".
She stated that she did not read the "whole thing * * * I wasn't interested in it." She said that she read briefly, but not the whole article and that the portion she did read was "mostly about the pictures".
"Q. Had you read anything about the narcotics situation that was claimed to exist in Racine while you were on the jury when you tried Mr. Mitchell, the defendant here? (Italics supplied.)
"Q. Any of those articles that you read in the newspaper in Racine have any effect upon your judgment in the Mitchell case?
"A. No, because I don't remember seeing Mr. Mitchell's name in that paper at all - any of the names.
"Q. So, under no circumstances did whatever you read in the paper influence you one way or another for the ...