Stassi v. United States, No. 9086.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN VALKENBURGH and BOOTH, Circuit , and MUNGER
Citation50 F.2d 526
PartiesSTASSI v. UNITED STATES.
Docket NumberNo. 9086.
Decision Date08 June 1931

50 F.2d 526 (1931)

STASSI
v.
UNITED STATES.

No. 9086.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1931.

Rehearing Denied June 8, 1931.


Sloane Turgeon, of Kansas City, Mo. (T. C. Swanson, of Kansas City, Mo., on the brief), for appellant.

Harry L. Thomas, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

The defendant was found guilty of the offenses of unlawful possession and transportation of intoxicating liquor, in violation of the National Prohibition Act (27 USCA). It appears that the charge of possession had been dismissed before the trial, and the sentence under that count, therefore, cannot be upheld. While the evidence was conflicting it was sufficient to show that the defendant transported a quantity of intoxicating liquor in an automobile for a distance of five blocks. The defendant admitted the possession of the liquor, that he intended to sell it, that he had placed the liquor in his automobile for transportation, but claimed that he had not started to transport it when he was arrested. He testified that he had offered to pay the officer who arrested him $200 if he would release him. At the trial the defendant was represented by an experienced attorney. The assignments of error relate to alleged errors during the reception of evidence, in the arguments made to the jury by the prosecuting attorney, in a portion of the instructions given to the jury by the court, and in the court's failure to instruct the jury on features of the case. It is conceded that no objections or exceptions were taken to the matters now

50 F.2d 527
complained of, except that objection was taken to portions of the argument made to the jury by the prosecuting attorney. Appellant contends that it was the duty of the court to instruct the jury on every essential question of law involved in the case, whether requested to do so or not, and that the judgment should be reversed because of omissions to instruct, and because of an alleged error in the instructions given

The rule as to the right of review of a failure to give instructions to a jury, where no request was made, was stated in an early case by Justice Story in Pennock v. Dialogue, 2 Pet. 1, 15, 7 L.Ed. 327, as follows: "It has been said, on behalf of the defendants in error, that it called for other and explanatory directions from the court, and that the omission of the court to give them in the charge, furnishes a good ground for a reversal, as it would have furnished in the court below for a new trial. But it is no ground of reversal, that the court below omitted to give directions to the jury upon any points of law which might arise in the cause, where it was not requested by either party, at the trial. It is sufficient for us, that the court has given no erroneous directions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for such party to require an opinion from the court upon that point; if he do not, it is a waiver of it. The court cannot be presumed to do more, in ordinary cases, than to express its opinion upon the questions which the parties themselves have raised at the trial."

This rule has been followed by that court ever since that decision. United States Express Company v. Kountze Brothers, 8 Wall. 342, 353, 354, 19 L. Ed. 457; Shutte v. Thompson, 15 Wall. 151, 164, 21 L. Ed. 123; Mutual Life Ins. Co. v. Snyder, 93 U. S. 393, 394, 23 L. Ed. 887; Texas & Pacific Railway v. Volk, 151 U. S. 73, 78, 14 S. Ct. 239, 240, 38 L. Ed. 78; Myers v. Pittsburgh Coal Company, 233 U. S. 184, 195, 34 S. Ct. 559, 58 L. Ed. 906. In Mutual Life Ins. Co. v. Snyder, supra, the court said: "But the omission of the learned judge to instruct the jury on a particular aspect of the case, however material, cannot be assigned for error, unless his attention was called to it with a request to instruct upon it."

In Texas & Pacific Railway v. Volk, supra, the subject was considered more at length, and the rule was restated: "The omission of the court to instruct the jury upon the subject of the plaintiff's contributory negligence is not open to exception, because the bill of exceptions does not show that the defendant requested any instruction upon that subject. In England, it is misdirection, and not nondirection, which is the subject of a bill of exceptions. Anderson v. Fitzgerald, 4 H. L. Cas. 484, 499. In this country, the rule is somewhat more liberal; and the not giving an instruction upon a point in issue may be excepted to, if one was requested, but not otherwise. In a very early case, Chief Justice Marshall said: `There can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue, nor that the refusal of the court to give such opinion furnishes cause for an exception.' Smith v. Carrington, 4 Cranch, 62, 71 2 L. Ed. 550. As afterwards more fully stated by Mr. Justice Story, `it is no ground of reversal that the court below omitted to give directions to the jury upon any points of law which might arise in the cause, when it was not requested by either party at the trial. It is sufficient for us that the court has given no erroneous directions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for said party to require an opinion from the court upon that point. If he does not, it is a waiver of it.' Pennock v. Dialogue, 2 Pet. 1, 15 7 L. Ed. 327. See, also, Express Co. v. Kountze, 8 Wall. 342, 353, 354 19 L. Ed. 457; Shutte v. Thompson, 15 Wall. 151, 164 21 L. Ed. 123. A request for instructions, being necessary to entitle the excepting party to avail himself of an omission to instruct, cannot be presumed, but must affirmatively appear in the bill of exceptions."

The same question has arisen in criminal cases decided by that court.

In Hickory v. United States, 151 U. S. 303, 316, 14 S. Ct. 334, 339, 38 L. Ed. 170, in holding that exceptions to instructions were properly taken the court said: "Again, the exception was not to the omission of the court to charge upon a particular point, in which case, in the absence of request that that should be done, it would not have been well taken. Texas & Pacific Railway Co. v. Volk, 151 U. S. 73, 14 S. Ct. 239, 38 L. Ed. 78."

In Isaacs v. United States, 159 U. S. 487, 490, 16 S. Ct. 51, 53, 40 L. Ed. 229, the rule was stated: "The next assignment is to the charge `that the corpus delicti could be established by circumstantial testimony, without saying that this circumstantial evidence should be such as creates cogent, irresistible

50 F.2d 528
grounds of presumption.' Without any request on the part of the defendant to add the qualification suggested, there was no error in the charge actually given. It is no ground for reversal that the court omitted to give instructions, where they were not requested by the defendant. It is sufficient that the court give no erroneous instructions. Pennock v. Dialogue, 2 Pet. 1, 15 7 L. Ed. 327. Texas & Pacific Railway v. Volk, 151 U. S. 73, 78, 14 S. Ct. 239 38 L. Ed. 78."

The question arose again in Goldsby v. United States, 160 U. S. 70, 77, 16 S. Ct. 216, 219, 40 L. Ed. 343, and it was said: "The four errors assigned as to the charge of the court do not complain of the charge intrinsically, but are based upon the assumption that, although correct, it was misleading, and tended to cause the jury to disregard the testimony offered by the defendant to establish an alibi. But the charge, in substance, instructed the jury to consider all the evidence and all the circumstances of the case, and, if a reasonable doubt existed, to acquit. If the accused wished specific charges as to the weight in law to be attached to testimony introduced to establish an alibi, it was his privilege to request the court to give them. No such request was made, and therefore the assignments of error are without merit. Texas & Pacific Railway v. Volk, 151 U. S. 73, 78, 14 S. Ct. 239 38 L. Ed. 78."

In Humes v. United States, 170 U. S. 210, 211, 18 S. Ct. 602, 42 L. Ed. 1011, the court stated that a part of the assignments of error related to the failure of the court to give certain instructions, and that the record failed to show that there was a request for such instructions, and the opinion then says: "We cannot regard as error the omission of the court to give instructions which were not asked. In Isaacs v. United States, 159 U. S. 487, 491, 16 S. Ct. 51 40 L. Ed. 229, Mr. Justice Brown said: `It is no ground for reversal that the court omitted to give instructions, where they were not requested by the defendant. It is sufficient that the court gave no erroneous instructions. Pennock v. Dialogue, 2 Pet. 1, 15 7 L. Ed. 327; Texas & Pacific Ry. Co. v. Volk, 151 U. S. 73, 78, 14 S. Ct. 239 38 L. Ed. 78.' Nor are instructions which were given, but not excepted to, subject to review. Tucker v. United States, 151 U. S. 164, 14 S. Ct. 299 38 L. Ed. 112; St. Clair v. United States, 154 U. S. 134, 153, 14 S. Ct. 1002 38 L. Ed. 936.

In these decisions there is no suggestion that a different rule applies in criminal cases from the rule in civil cases, and in the criminal cases the court cites its prior decisions in civil cases as determinative.

The same question has frequently arisen in cases in the United States Courts of Appeal. It has sometimes been said that it is the duty of the trial judge to instruct the jury on all essential questions in a criminal case, whether requests for such instructions are or are not made. What are essential questions has not been defined. It is obvious that any question involved in a case, whether relating to the principles of law, the nature of the issues, or the estimation of the evidence, may be regarded as an essential...

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19 practice notes
  • Stewart v. United States, No. 12944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 18, 1957
    ...which we have no reason to suppose that they were not." See also Pietch v. United States, supra; Stassi v. United States, 8 Cir., 1931, 50 F.2d 526; Di Carlo v. United States, 2 Cir., 6 F.2d 364, certiorari denied, 1925, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 8 State v. Burns, 1903, 119 Iowa ......
  • U.S. v. Lewis, No. 76-1238
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 22, 1977
    ...States, 218 F.2d 14, 19 (6th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). See also Stassi v. United States, 50 F.2d 526, 532 (8th Cir. 1931). No motion for a mistrial was made, and under the circumstances the court's admonition to the jury to "disregard about the j......
  • Weaver v. United States, No. 11532.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 1, 1940
    ...States, 70 App.D.C. 142, 105 F.2d 21, 26; Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522, 524; Stassi v. United States, 8 Cir., 50 F.2d 526, 528; Kreiner v. United States, 2 Cir., 11 F.2d 722, 731; Bruno v. United States, 308 U.S. 287, 293, 60 S.Ct. 198, 84 L.Ed. ___; and see Bird v.......
  • Daniel v. United States, No. 17578.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 30, 1959
    ...30; Apel v. United States, 8 Cir., 247 F.2d 277; Gicinto v. United States, 8 Cir., 212 F.2d 8; Stassi v. United States, 8 Cir., 50 F.2d 526, 9 Bennett v. United States, 10 Cir., 252 F. 2d 97; Bary v. United States, 10 Cir., 248 F.2d 201; Segal v. United States, 8 Cir., 246 F.2d 814; Shaw v.......
  • Request a trial to view additional results
19 cases
  • Stewart v. United States, No. 12944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 18, 1957
    ...which we have no reason to suppose that they were not." See also Pietch v. United States, supra; Stassi v. United States, 8 Cir., 1931, 50 F.2d 526; Di Carlo v. United States, 2 Cir., 6 F.2d 364, certiorari denied, 1925, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 8 State v. Burns, 1903, 119 Iowa ......
  • U.S. v. Lewis, No. 76-1238
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 22, 1977
    ...States, 218 F.2d 14, 19 (6th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). See also Stassi v. United States, 50 F.2d 526, 532 (8th Cir. 1931). No motion for a mistrial was made, and under the circumstances the court's admonition to the jury to "disregard about the j......
  • Weaver v. United States, No. 11532.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 1, 1940
    ...States, 70 App.D.C. 142, 105 F.2d 21, 26; Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522, 524; Stassi v. United States, 8 Cir., 50 F.2d 526, 528; Kreiner v. United States, 2 Cir., 11 F.2d 722, 731; Bruno v. United States, 308 U.S. 287, 293, 60 S.Ct. 198, 84 L.Ed. ___; and see Bird v.......
  • Daniel v. United States, No. 17578.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 30, 1959
    ...30; Apel v. United States, 8 Cir., 247 F.2d 277; Gicinto v. United States, 8 Cir., 212 F.2d 8; Stassi v. United States, 8 Cir., 50 F.2d 526, 9 Bennett v. United States, 10 Cir., 252 F. 2d 97; Bary v. United States, 10 Cir., 248 F.2d 201; Segal v. United States, 8 Cir., 246 F.2d 814; Shaw v.......
  • Request a trial to view additional results

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