Brasfield v. United States

• Decision Date: 12 October 1925
• Docket Number: No. 4489.,4489.
• Citation: 8 F.2d 472
• Parties: BRASFIELD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 472 (1925)

BRASFIELD et al. v. UNITED STATES.

No. 4489.

Circuit Court of Appeals, Ninth Circuit.

October 12, 1925.

Preston & Duncan, of San Francisco, Cal., for plaintiffs in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiffs in error, with seven others, were jointly indicted and charged with a conspiracy to receive unlawfully from carriers, possess unlawfully, and unlawfully transport intoxicating liquors. The evidence, in the case is not before us, but from instructions of the court to the jury, not excepted to, enough appears to indicate that there was no abuse of legal process in lodging a charge of conspiracy against the plaintiffs in error, and that there was evidence tending to show a conspiracy to introduce into the country a large quantity of intoxicating liquors, and to possess and transport the same in violation of the law.

Two exceptions were taken to the instructions given by the court to the jury when the jury were brought into court on the day following that upon which they had retired to deliberate upon their verdict. At that time counsel for the plaintiffs in error took exception to the following portion of the charge: "This case is a very plain one. There is no question about it. There is the evidence on the one side and the evidence on the other. It is your duty to review that in a manner to reconcile it and to bring in a verdict if it is possible." Counsel for the plaintiffs in error further said: "May I also except to that portion of the statement that it is the duty of any juror to surrender his opinion? I do not think the law calls upon a juror to surrender a conscientious opinion." To which the court answered: "I have told them so. I have told them that a juror taking an attitude should be certain that it is based upon his conscientious conviction. It is my duty to so admonish them. It is to be based upon the evidence, and upon that alone, and not upon any consideration of bias or prejudice, or preconceived opinion, or pride of opinion, or anything of that kind."

Error is not assigned to the instructions so excepted to, but error is assigned to the question addressed by the court to the jury, when they were brought into court, as to how they were divided numerically. That assignment is unsupported by any exception taken at the time. For aught that appears in the record, counsel for the plaintiffs in error were willing that the inquiry should be made, and assented thereto. Such being the case, they are in no position now to predicate error thereon. As to the propriety of such an inquiry, we adhere to the views expressed by this court in Quong Duck v. United States, 293 F. 563, and by the Circuit Court of Appeals for the Fifth Circuit in Bernal v. United States, 241 F. 339, 154 C. C. A. 219 (certiorari denied 245 U. S. 672, 38 S. Ct. 192, 62 L. Ed. 540), that to address such a question to a jury is not in itself reversible error.

Error is assigned to the following instruction: "I am not advising you what way your verdict should be, but I am advising you that the evidence in this case should leave no difficulty with you, if taken hold of in the proper spirit in bringing in a verdict." That assignment, and the exception to the charge that "the case is a very plain one,...