
    Huston SPENCER, Appellant, v. UNITED STATES of America, Appellee.
    L-508.
    United States Court of Appeals Sixth Circuit.
    June 3, 1959.
    James J. Eastland, Jr., Cincinnati, Ohio, for appellant.
    Fred W. Kaess, U. S. Atty., Detroit, Mich., for appellee.
    Before ALLEN, McALLISTER and MILLER, Circuit Judges.
   PER CURIAM.

Following trial by jury in the District Court, appellant was convicted for violation of Federal statutes relating to the possession and purchase of heroin. He claims that the Government’s evidence produced at his trial did not prove possession. Motions to proceed in forma pauperis and to vacate the sentence were overruled by the District Judge on the ground that a motion to vacate judgment can not be used as a substitute for an appeal. The order of the District Court stated that the motions to proceed in forma pauperis and to vacate the sentence were without merit and frivolous.

Appellant has filed a motion in this Court to proceed in forma pauperis in the appeal from the order of the District Court. He has had the assistance of court-appointed counsel in the preparation of the brief in support of said motion.

The Court being of the opinion that the appeal is without merit and that it was not error on the part of the District Judge to overrule appellant’s motion to proceed in forma pauperis, It Is Ordered that appellant’s motion to proceed on appeal in forma pauperis be and is denied. Loum v. Underwood, 6 Cir., 262 F.2d 866; Hullom v. Burrows, 6 Cir., 266 F.2d 547.  