406 F.2d 397
UNITED STATES of America, Appellee,
v.
Charles BAXLEY, Appellant.
No. 12097.
United States Court of Appeals Fourth Circuit.
Argued Jan. 9, 1969.
Decided Feb. 4, 1969.
Leo H. Hill, Greenville, S.C. (Court-appointed counsel) for appellant.
Thomas F. Batson, Asst. U.S. Atty. (Klyde Robinson, U.S. Atty., and William B. Long, Jr., Asst. U.S. Atty., on the brief), for appellee.
Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.
PER CURIAM:
We think the difference between clearly permissible comment on the evidence, traditional with common law judges, and the instructions given here, alleged to have removed from jury consideration essential elements of the crime, is not so gross that we should notice the matter as plain error. Fed.R.Crim.P. 30. We are urged to reject the rule enunciated in this circuit in Guy v. United States, 336 F.2d 595 (4th Cir. 1964), and United States v. Salliey, 360 F.2d 699 (4th Cir. 1966). Although we decline to reconsider these decisions in the absence of objection below, we do suggest to district judges that the constitutional problem inherent in the withdrawal from a jury of any of the essential elements constituting a crime may well be avoided. The federal judge's power to comment on the evidence enables him to offer guidance without invading the province of the jury.
We have examined the other assignments of error and find them entirely without merit.
Affirmed.
