180 F. 339 (4th Cir. 1910), 961, Garst v. United States

Docket Nº:961.
Citation:180 F. 339
Party Name:GARST v. UNITED STATES.
Case Date:July 12, 1910
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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180 F. 339 (4th Cir. 1910)

GARST

v.

UNITED STATES.

No. 961.

United States Court of Appeals, Fourth Circuit.

July 12, 1910

Page 340

R. H. Willis, for plaintiff in error.

Barnes Gillespie, U.S. Atty (Samuel H. Hoge, Asst. U.S. Atty., on the brief).

Before PRITCHARD, Circuit Judge, and WADDILL and KELLER, District judges.

KELLER, District Judge.

This is a writ of error to a judgment pronounced against the plaintiff in error by the District Court of the United States for the Western District of Virginia on the 29th day of June, 1909, upon an indictment for removing and concealing spirits in violation of the revenue laws of the United States.

The indictment under which this conviction was had consisted of four counts, and the verdict of the jury found the defendant not guilty of the charges contained in the second, third, and fourth counts of the indictment, but guilty of the charge contained in the first count of the indictment to the effect that the said defendant, G. W. Garst, 'did unlawfully remove and aid and abet persons, to the grand jury unknown, in the removal of certain distilled spirits, to wit: seventy-six gallons of corn whisky upon which the tax imposed by law had not been paid, from a distillery, to wit: G. W. Garst's distillery, to a place other than the distillery warehouse provided by law, to wit: Patrick county, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States. ' A number

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of bills of exception were taken in the progress of the trial, and after its close an assignment of errors, consisting of nine paragraphs, was prepared by counsel for the plaintiff in error.

Before discussing the assignments of error which seem to be properly taken and are therefore necessary to be considered in the determination of this case, it seems proper to once more call attention to the requirements of the rules of this court in relation to assignments of error. Rule 11 1 provides that, when the error assigned is to the admission or rejection of evidence, 'the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. * * * When this is not done counsel will not be heard except at the request of the court, and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.'

Many of the assignments of error presented in this record were not prepared in conformity with the rule from which the above quotation was taken, and one of them (the fifth assignment) is remarkable in that there is no bill of exceptions to support it. This assignment reads:

'Fifth: The court erred, as set forth in the defendant's bill of exceptions No. 8, in instructing the jury that the records of the G. W. Garst distillery were not offered in evidence to show how much whisky had been made and how much tax paid, but for the purpose of showing the cost of manufacture of said spirits.'

As stated above, no bill of exceptions No. 8 appears in the record, and we cannot too earnestly remind counsel that this court cannot supply omissions nor rectify errors in the preparation of these matters, and ought not to be asked to puzzle over such conditions as are disclosed by this assignment.

Some assignments of error, not the subject of objections hereinabove mentioned, were not urged in argument, and may be considered as abandoned; others, relating to the admission of evidence, challenged as irrelevant, are clearly without merit, and we do not find it necessary to consider any except the third, fourth, and sixth assignments of error.

The third assignment of error relates to alleged errors concerning several written instructions and changes made therein by the court, as to which exceptions were saved by appropriate bills of exception, and is in the following language:

'Third. The court erred in refusing to give instruction offered by the defendant, Nos. 1, 2, 3, and 7, and in altering the said instruction in the following particulars; that is to say in the defendant's instruction No. 1, as set forth in the defendant's bill of exceptions No. 2, the court struck out the following words, 'that such presumption of innocence is not a mere form which the jury may disregard at its pleasure but a substantial part of the law of the land and binding upon the jury in this case.' And as appearing from the said bill of exceptions the court likewise struck out from the said instructions the following words: 'If such facts might also be true and the defendant be innocent, then it makes no difference how much stronger the probability of his guilt than his innocence, you must acquit'-- and, as shown by the said bill of exceptions, the court added to the said instructions the following words: 'Yet if the facts are equally consistent with innocence you

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should acquit.' And in the defendant's instruction No. 2, as set forth in the defendant's bill of exceptions No. 3, the court struck out the following words: 'No amount of suspicion, however grave or serious,' and inserted the words 'suspicion of guilt.' And the court likewise added to the said instruction the words, 'you must be satisfied of guilt beyond all reasonable doubt.' And in the defendant's instruction No. 3 the court struck out the words 'for the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good.' And in the defendant's instruction No. 7, as set forth in the defendant's bill of exceptions No. 4, the court struck out the words, 'as appears by the official record."

We are satisfied that the action of the trial court, as disclosed by bills of exception Nos. 3 and 5, touching instructions Nos. 2 and 7, was without error and fully justified by the weight of authority.

Bill of exceptions No. 2 is in the following words:

'Be it remembered that upon the trial of this cause, after the evidence had been concluded, the defendants, by counsel, moved the court to instruct the jury as follows:

"(1) The court instructs the jury that the mere fact that the defendants are accused of a crime or that the grand jury has indicted them does not raise any presumption against them whatever, but that every person is presumed by the law to be innocent, and the burden is on the government to prove beyond a reasonable doubt that the defendants are guilty as charged in the indictment; that such presumption of innocence is not a mere form which the jury may disregard at its pleasure, but a substantial part of the law of the land and binding upon the jury in this case. If, therefore, the government fails to prove to you every fact necessary to establish the guilt of the accused beyond a reasonable doubt, you must acquit them. And in this connection you are instructed that circumstantial evidence should be weighed with extreme caution and a doubt as to any one fact or circumstance necessary to establish the guilt of the accused is conclusive and you must acquit, and that, even though every fact be proven and such a state of affairs be shown to you as if true would be entirely consistent with the guilt of the accused if such facts might also be true and the defendants be innocent, then it makes no difference how much stronger the probability of his guilt than his innocence, you must acquit.'

'Which instruction the court then and there refused, but, instead, gave the following instruction:

"(1) The court instructs the jury that the mere fact that the defendants are accused of a crime or that the grand jury has indicted them does not raise any presumption against them whatever, but that every person is presumed by the law to be innocent, and the burden is on the government to prove beyond a reasonable doubt that the defendants are guilty as charged in the indictment. If, therefore, the government fails to prove to you every fact necessary to establish the guilt of the accused beyond a reasonable doubt, you must acquit them. And in...

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