Pincolini v. United States

RUDKIN, Circuit Judge. The indictment in this case was returned against four defendants and contains four counts. The first count charges a conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et .seq.), the second count charges the unlawful possession of intoxicating liquor, the third count charges the unlawful sale of intoxicating liquor, and the fourth count charges the maintaining of a common nuisance. Two of the defendants were acquitted as to all four counts, and two were convicted upon the last three counts. Upon the trial a witness for the defense admitted that he had intoxicating liquor in his possession at the time of the raid which resulted in the arrest of the plaintiffs in error, and that he then broke the bottles containing the liquor. The witness was asked upon cross-examination : “Do you realize riglit now that, if we had the marshal put you under arrest on the charge of having possessed liquor on that day, there would be nothing for you to do but enter a plea of guilty?” An objection was interposed to this question upon the ground that the witness was not presumed to know the law or what might happen to him. This objection might well have been sustained. The» witness had already admitted the possession of intoxicating liquor, and that he knew that such possession was prohibited by law, and what he could or might do if placed under arrest was utterly beside the question at issue. We cannot see, however, that the ruling was at all prejudicial. [1] One of the plaintiffs in error was recalled for further cross-examination, and was asked if he did not state to certain named officers at a given time and place, that he did not consider it a crime to sell liquor, and that he would keep on selling as long as he was out of jail. Objection to the question was interposed upon the ground that the testimony was incompetent, irrelevant, and immaterial, and not proper cross-examination. On direct examination the witness was asked whether, at any time, he had sold, assisted in selling, or consented to the sale of intoxicating liquor on the premises in question, 'and answered in the negative. The testimony sought to be elicited by this question had a tendency to contradict the testimony given by the witness on direct examination and was therefore clearly competent. The remaining assignments are based upon exceptions to the charge of the court. The only exception taken to the charge was in the following lahguage: “If it please tbe court, we except to the portion of the court’s charge wherein the court summarizes and states the testimony, upon the ground that the same invades the province of the jury, and the same is beyond the power of the court in charging the jury as to mere matters of law.” In response to this exception the court said: “I have discussed this testimony, because it is within the province of the judge to do so if he believes it to be his duty. It may not be so in the state courts, but it is the province and the right of a federal judge to discuss the testimony if he sees fit, and even to go so far as to give his opinion with reference to the case, provided he instructs the jury, as I have done, that [470] they must follow their own judgment, and that anything the court says with reference to the-faets and the evidence in the case, and the credibility of witnesses, is a matter that can have no weight with them, except as it appeals to their judgment.” It is manifest from the foregoing that counsel reserving the exception had in mind the constitutional provision in Nevada, declaring that judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law, and that the exception was so understood by the trial court. It is now conceded that the state constitutional provision has no application to a trial in the federal court, and therefore the exception presents no question for review in this court. The obvious purpose of an exception to an instruction is tp direct or challenge the attention of the trial court to the claimed error, so that it may be corrected before the jury retires, thus obviating the necessity for granting a new trial or for reversal on writ of error, and this court has repeatedly held that exceptions reserved after the retirement of the jury are of no avail, and that instructions cannot be reviewed, in the absence of proper and timely exceptions. We might, of course, review a plain error not assigned or specified to prevent a palpable miscarriage of justice, but no such case is presented here. [2] The'instruction complained of may not be above criticism. In charging the jury the court should not assume facts in controversy; if the testimony is stated, it should be stated with accuracy; that which makes in favor of the party should be stated, as well' as that which makes against him; theories should nol be advanced or conclusions drawn that are not warranted by the testimony; the charge should not be argumentative or one-sided; and the court should not step out of the province of the judge into that of the advocate. Starr v. United States, 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841, and cases there cited. It may well be claimed that the instruction complained' of does not meet all of these requirements. [3] But the chief objection is that the charge assumes facts and draws conclusions not warranted by the testimony. That facts are assumed and conclusions drawn does not admit of question, but it cannot be said that the assumptions and conclusions are not warranted by the testimony when the testimony is not before us. The bill of. exceptions only contains fragmentary portions of the testimony, upon which objections were based. Thus no part of the testimony in chief on the part of the government is included, except a single question upon which an objection was based, and no part of the testimony on the part of the defense is included, except two questions to which objections were interposed. It cannot be said, therefore, that the assumptions and deductions complained of were not warranted by the testimony before the court below. Eor these reasons, we find no reversible error in the record, and the judgment is affirmed.