Kaufman, Hays and Marshall, Circuit Judges.
This is an appeal from a judgment of conviction for violating 18 U.S.C. § 472, entered upon a jury verdict. We affirm.
Appellant was charged with passing and possessing counterfeit $10 Federal Reserve Notes with intent to defraud. It is conceded that appellant passed and possessed the counterfeit bills. He defended on the theory that he did not know that the bills were counterfeit, a necessary element of the crime. United States v. Carll, 105 U.S. 611, 613, 26 L. Ed. 1135 (1882). The jury resolved this issue against appellant, and we hold that even in light of the strictures of Marson v. United States, 203 F.2d 904, 906 (6 Cir. 1953), and United States v. Forzano, 190 F.2d 687, 688 (2 Cir. 1951) against inferring the guilty knowledge from mere possession of counterfeit money, there was sufficient evidence upon which a reasonable jury could conclude that the prosecution proved beyond a reasonable doubt that appellant knew the bills were counterfeit.
Appellant claims that certain of this evidence supporting the verdict is hearsay and that the judgment of conviction should be reversed because its admission was erroneous. A prosecution witness, a Mr. Keys, testified that he owned a bar in the same town as where appellant had tried to pass the counterfeit bill, that on the day before the incident alleged in the indictment occurred a man came into his bar and tendered a $10 bill, that he recognized this bill as counterfeit and that he "threw it back" at the man. Government counsel then asked whether that man was present in the courtroom and the witness replied, much to counsel's surprise, "I'm not sure." The witness then testified that on the next night he had been shown a man through a window in a door at the police station, whom he then identified as the man who attempted to pass him the counterfeit bill the night before. Counsel then asked Keys whether the man he identified was present in the courtroom, and the witness replied, "I'm not sure." Appellant's counsel did not cross-examine Keys.
After this witness was excused, the following occurred:
Mr. Greenberg [defense counsel]: At this time I wish to strike this last witness's entire testimony.
The Court: I deny the motion.
Mr. Hurwitz [Government counsel]: May we have a side-bar conference at this time?
(At the side-bar, without the hearing of the jury:)
Mr. Hurwitz: * * * As may be apparent, this last witness positively identified Brown on the night of April 4th, and, indeed, had given us the description prior to that.
The Court: Why don't you call in the ...