
    PEPPERS v. UNITED STATES.
    Circuit Court of Appeals, Sixth Circuit.
    January 10, 1930.
    No. 5387.
    Blase A. Buonpane, of Cleveland, Ohio (Buonpane, Sherman & Buonpane, of Cleveland, Ohio, on the brief), for appellant.
    John B. Osmun, of Cleveland, Ohio (Wilfred J. Mahon, of Cleveland, Ohio, on the brief), for the United States.
    Before DENISON and KNAPPEN, Circuit Judges, and TAYLOR, District Judge.
   PER CURIAM.

The only error alleged and requiring attention is that the judge communicated with the jury after their retirement and not in open court in the presence of both counsel. The facts are that the jury sent word to the judge that they wished to ask a question; he returned instructions to put it in writing; thereupon in writing they asked whether they could have further information on a certain point; in writing he replied that they could not, for the case was closed. Practically at once, and while the jury was still out, the judge told appellant’s counsel what had been done. Counsel made no request and intimated no desire that the jury be recalled and the ease be reopened; even if the proceeding had been in open court and such a request had been made, its granting would have been discretionary.

If formal error there was, it is clear that there was no prejudice. See Sandusky Co. v. Hamilton (C. C. A. 6) 287 F. 609. It is not necessary to consider the precise effect of section 269, Judicial Code (section 391, tit. 28, USCA), in cases where it is not clear whether or not there might be prejudice.' Robilio v. United States (C. C. A.) 291 F. 975, 980, 981. In this ease, there surely was none; and this section forbids reversal.

The verdict and sentence are affirmed.  