Blake v. United States, 130.

• Decision Date: 27 December 1895
• Docket Number: 130.
• Citation: 71 F. 286
• Parties: BLAKE v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

71 F. 286

BLAKE v. UNITED STATES.

No. 130.

United States Court of Appeals, First Circuit.

December 27, 1895

Anson M. Goddard, for plaintiff in error.

Albert W. Bradbury, U.S. Atty., for defendants in error.

Before COLT and PUTNAM, Circuit Judges, and NELSON, District Judge.

PUTNAM Circuit Judge.

We find in the printed transcript laid before us a copy of the entire charge to the jury at the trial in the district court; but we do not find that it was incorporated into the bill of exceptions, or that it is in any way of record in that court. It may be considered by us as the opinion of the learned judge who presided in that court, the same as any other opinion required by rule 14 (11 C.C.A. civ., 47 F. vii.) to be transmitted with the record, but not as a part of it. The law is well settled that in common-law cases it can have no other effect. The rule has lately been reaffirmed in Clune v. U.S., 159 U.S. 590, 16 Sup.Ct. 125, as follows:

'Finally there is a claim of error in the instructions, but the difficulty with this is that they are not legally before us. True, there appears in the transcript that which purports to be a copy of the charge, marked by the clerk as filed in his office among the papers in the case; but it is well settled that instructions do not, in this way, become part of the record. They must be incorporated in a bill of exceptions, and thus authenticated by the signature of the judge. This objection is essentially different from that of the lack or the sufficiency of exceptions. An appellate court considers only such matters as appear in the record. From time immemorial that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or recognized method have been made a part of it. There are, for instance, in some states, statutes directing that all instructions must be reduced to writing, marked by the judge 'Refused' or 'Given,' and attested by his signature; and that, when so attested and filed in the clerk's office, they become a part of the record. But in the absence of that or some other statutory provision, a bill of exceptions has been recognized as the only appropriate method of bringing onto the record the instructions given or refused.'

Therefore all we have before us as to any exception taken during the trial is the following:

'And be it further remembered that, after the testimony was closed, in charging the jury, the court, among other things, instructed the jury as follows: 'The only wrong of the officer which would have justified any forcible resistance on the part of Mr. Blake would have been seizing him and committing an assault upon him without any warning or notice of his official character, and that he was in the discharge of the official duty in executing that warrant, under the circumstances of this case.' To the foregoing instructions the said respondent seasonably excepted, and his exception was duly allowed.'

This gives us only a detached sentence, without the context or any explanation, one of which is ordinarily necessary to a true appreciation of what is thus singled out. All the evidence is reported, and therefore this difficulty might, perhaps, be overcome but for the closing words of the sentence excepted to, 'under the circumstances of this case. ' This is an essential qualification, which this court has no method of estimating. On error it is important to have it appear how the case was presented in the court below. King v. Asylum, 12 C.C.A. 145, 64 F. 331, 358. The evidence will not disclose this, because, while it shows what questions might have been raised, it does not make certain what were in fact raised. The latter, and these only, were the 'circumstances of this case' referred to by the portion of the charge excepted to. As we cannot know what these were, in the only way the law allows us to know them, the presumption that the charge as a whole was correct must stand. Reagan v. Aiken, 138 U.S. 109, 113, 11 Sup.Ct. 283. We think this presumption applies to cases of ordinary misdemeanors, however it may be with reference to capital offenses, other felonies, or infamous crimes. We are, however, entitled to examine the whole charge in determining whether we can, in our discretion, furnish the plaintiff in error any method of relief by which he can at some future time bring before us any questions he intended to raise. We are satisfied that the expression excepted to, taken in connection with the entire charge, the remainder of which was not excepted to, could not have misled the jury; so there is no occasion for our exercising any such discretion, even if we could.

We have also a motion in arrest of judgment for the alleged insufficiency of the indictment. The indictment is short, so we give its substance by its tenor:

'The grand jurors of the United States of America, for the district of Maine, aforesaid, on their oath present that Herbert Blake, of Hallowell, in said district of Maine, on the 11th day of December, in the year of our Lord one thousand eight hundred and ninety-four, at Hallowell, in the said district of Maine, knowingly and willfully, with force and arms, an assault did make in and upon one Noah M. Prescott, and him, the said Noah M. Prescott, did beat and wound, he, the said Noah M. Prescott, being then and there a duly-authorized officer of the United States, to wit, a deputy marshal of the United States for said district, and being then and there in discharge of his duty as said deputy marshal in executing a warrant duly issued from the district court of the United States for said district for the arrest of said Herbert Blake, against the peace and dignity of the said United States, and contrary to the form of the statute of the said United States, in such case made and provided.'

The reasons for which it is claimed judgment should have been arrested, set out in the motion, are as follows, except the numerals inserted by us:

'(1) Because it is not alleged that at the time of making said assault said Blake knew said Noah M. Prescott to be a deputy marshal of the United States, or that the said Blake knew him to be in the discharge of his official duty in executing a legal warrant, or that the said Blake knew that said Noah M. Prescott had a legal warrant which he was attempting to execute; further (2) because it is not alleged in said indictment that the supposed warrant was a legal warrant in due form; (3) because it is not alleged that the warrant was under seal of said court; (4) because it is not alleged that said warrant was duly attested; (5) because it is not alleged that said warrant was issued on an indictment returned to said court; (6) because it is not alleged that said warrant was issued in consequence of any alleged crime or other matter within the jurisdiction of said court; (7) because all the allegations in said indictment, taken together, are insufficient to show that the supposed warrant was legal in form, and sufficient to authorize the arrest of said Blake; (8) because all the allegations in said indictment, taken together, are insufficient to show that the supposed assault was not justifiable in resisting an attempted execution of a warrant illegal on its

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