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is entitled to as much credit as the evidence of white men; since the jurors are the exclusive judges of the weight to be given to evidence, 12

It is error to instruct the jury to disregard certain evidence because it is contrary to the laws of nature when its truth is not impossible.13

The defendant is entitled to an instruction that there can be no conviction unless the evidence proves his guilt beyond a reasonable doubt.14

It was held to be erroneous to charge that the Government need not prove every material allegation beyond a reasonable doubt, that it must prove them by evidence satisfactory to the jury; but that, upon the whole evidence, before a verdict of guilty could be returned the jury must be satisfied beyond a reasonable doubt of the defendant's guilt.15 The defendant is not entitled to a charge that his character is presumed to be good.16

12 Campbell v. U. S., C. C. A., 221 Fed. 186.

13 Post v. U. S., C. C. A., 135 Fed. 1.

14 Spear v. U. S., C. C. A., 228 Fed. 485; Heard v. U. S., C. C. A., 228 Fed. 503. In Lamb v. U. S., C. C. A., 264 Fed. 660, 664, the following instruction was approved:

"Where a case is dependent entirely upon circumstantial evidence, as is the case in this case, the evidence must be of that degree of strength to exclude every other reasonable doubt save that of the guilt of the accused. The true question in every criminal case is whether the evidence is sufficient to convince you beyond a reasonable doubt of the defendant's guilt. If the evidence is of that degree of strength, then it would be your duty to convict. On the other hand, if it does not approach that degree of strength, then it would be equally your duty to acquit him."

15 Spear v. U. S., C. C. A., 228 Fed. 485. See Heard v. U. S., C. C. A., 228 Fed. 503.

16 U. S. v. Smith, 217 Fed. 839; Greer v. U. S., C. C. A., 240 Fed. 320. It was held to be erroneous to charge that evidence showing accused's good character for honesty, integrity, and morality is admissible and should be considered by the jury, and if it is of such a nature as to lead the jury to believe that it is impossible that a man of such high character would commit such a crime, and for that reason raises a reasonable doubt in the minds of the jury whether accused is guilty of the crime charged, accused is entitled to the benefit thereof, which was coupled with a further statement, pointing out that persons of high character frequently commit crimes, and that for accused to have obtained his position in the Post Office Department, it was necessary to furnish recommendation of two reputa

The court may illustrate the manner in which a fact may be proved by stating a hypothetical case; 17 but references to other trials which are recent are not approved.18

When the jury report their inability to agree the court may instruct them to consider the case further.19 It is improper for the court then to inquire in what proportion they are divided.20

§ 527c. Verdicts in criminal cases. The verdict must be approved by all the members of the jury. The constitutional guaranty of trial by jury necessitates a jury of twelve. It has been held that in a capital case where one juror is disabled the defendant cannot waive his right to a verdict by twelve and consent that the remaining eleven may try the facts. A unanimous verdict by jury is not however essential to due process of law. In the absence of a guaranty in the State constitution of trial by jury a State statutory provision that the votes of a majority might bring in a verdict in the State would be valid.5

The verdict is not obtained by undue compulsion because of a charge, that "in criminal cases in this court we follow the common law practice of keeping the jurors all together until the jury have agreed; but the marshal will endeavor to provide you a place to sleep to-night, so as not to keep you up in the jury room." Nor by directing the jury further to consider the case when they have announced their inability to agree after they have deliberated for forty-eight hours.7

In all criminal causes the defendant may be found guilty of any

ble citizens to vouch for his integ rity, is prejudicial since this in effect deprived the accused of the benefit of the evidence as to his character. Perara v. U. S., C. C. A., 235 Fed. 515.

17 Pointer v. U. S., 151 U. S. 396, 416, 14 Sup. Ct. 410, 38 L. ed. 208.

18 Ibid.; Whiting v. U. S., D. C. C. A., 263 Fed. 477.

19 Campbell v. U. S., C. C. A., 221 Fed. 186.

20 Burton v. U. S., 196 U. S. 283, 306, 307, 25 Sup. Ct. 243, 249, 250, 49 L. ed. 482.

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offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense so charged: Provided, That such attempt be itself a separate offense. A verdict for man-slaughter will be sustained under an indictment charging murder which contains all the allegations essential to aver the lesser crime.9

It has been said that when a verdict has been returned finding the defendant guilty of offense higher than is justified by the evidence, the court has power to enter judgment for a minor offense, which the evidence justifies, provided it is covered by the indictment.10

"On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury." 11

Where an indictment against two defendants charged several joint violations of a statute, the evidence except as to two counts proved only separate offenses and a joint verdict was rendered; the conviction was sustained only as to the counts with reference to which the evidence justified findings of joint of fenses.12 Where an indictment charges the defendants with conspiracy together and with no one else, an acquittal of one is an acquittal of both.13 But it has been held: that where they are also charged with conspiracy with others unknown to the grand jury, one may be acquitted and the other convicted.14

A verdict of guilty may be set aside for repugnancy or inconsistency; 15 but such an objection is not favored.16 Applica

8 U. S. R. S., § 1035.

9 U. S. v. Leonard, 2 Fed. 669, 18 Blatchf. 187; Brimie v. U. S., C. C. A., 200 Fed. 726.

10 U. S. v. Linnier, 125 Fed. 83, citing State v. Keasling, 74 Iowa 528, 38 N. W. 397; Commonwealth v. Squire, 1 Metc. (Mass.) 258; Commonwealth v. Mahar, 8 Gray (Mass.) 469.

11 U. S. R. S., § 1036.

12 Brimie v. U. S., C. C. A., 200 Fed. 726.

13 U. S. v. Hamilton, 8 Chicago Legal News, 211, Fed. Cas. No. 15,288.

14 Ibid.

15 U. S. v. Hamilton, 8 Chicago Legal News 211, Fed. Cas. No. 15,288.

16 U. S. v. Tyler, 7 Cranch. 285, 3 L. ed. 344; Statler v. U. S., 157

tions to set aside verdicts were denied when the defendant was found guilty of the charge of aiding and abetting an offense, but not guilty of committing the same,17 although, the Criminal Code 18 makes an aider and abettor liable as a principal; and when he was found not guilty on several counts, each of which was limited to a single transaction, and guilty upon one count charging all such transactions, 19 and when he was found guilty of breaking into a car, containing an interstate shipment, stealing the goods shipped therein and having possession of the goods stolen therefrom.20 An acquittal on a count charging an intent is not repugnant to a conviction upon a count charging the same fact without the intent.21 An acquittal of one defendant for a criminal intent in writing a book is not repugnant to a finding that another defendant is guilty of such intent in printing and publishing the same.22

Surplusage may be disregarded.23 A verdict of guilty is not qualified or limited by the addition of a finding of facts which alone are insufficient to justify it,24 nor by a finding of a fact, which is immaterial.25

A verdict of "guilty as charged in the indictment" is tantamount to a conviction on each of the counts therein charged.26 A verdict "guilty of conspiracy" is a general and not a special verdict.27 It will be construed as referring to the conspiracy charged in the indictment if such a charge is contained in any of the counts and will be sufficient for a conviction upon such count.28 Where there are several counts in an indictment, one of which is good and the other bad, and the jury find a general

U. S. 277, 39 L. ed. 700. See Doan v. U S., C. C. A., 266 Fed. 982.

17 Davey v. U S., C. C. A., 208 Fed. 237.

18 § 332, 35 Stat. L. 1152, Comp. St., § 10506.

19 Flickinger v. U. S., C. C. A., 150 Fed. 1.

20 Greenburg v. U. S., C. C. A., 253 Fed. 728.

21 Hinkhouse v. U. S., C. C. A., 266 Fed. 977.

22 American Socialist Soc. v. U. S., C. C. A., 266 Fed. 212.

23 U. S. v. Tyler, 7 Cranch. 285, 3 L. ed. 344; Statler v. U. S., 157 U. S. 277, 39 L. ed. 700.

24 Statler v. U. S., 157 U. S. 277, 39 L. ed. 700.

25 U. S. v. Tyler, 7 Cranch. 285," 3 L. ed. 344.

26 Schraubstadter v. U. S., C. C. A., 199 Fed. 568.

27 Huff v. U. S., C. C. A., 228 Fed. 893.

28 Ibid.

verdict of guilty, the verdict will be sustained upon the presumption of law that it was based upon the good count; 29 but the sentence imposed cannot exceed that which might properly be imposed on the good count.30

Where an indictment contains several counts each charging the same offense as committed in different ways an acquittal upon one count is not inconsistent with a. conviction upon another.31 Where an indictment contained a number of counts each charging the mailing of a letter on different dates all in furtherance of a scheme to defraud, an, acquittal on some of them did not negative a charge of having on a prior date devised the fraudulent scheme.32 When a single count charged different acts as offenses, some of which were innocent, it was held that verdict of guilty must be applied to these and consequently could not be sustained.33

A sealed verdict may be received by the consent of the defendant when it is returned before the separation of the jury; 34 but the jury should be present when it is opened.35 A verdict may be received on Sunday.36

§ 527d. Requests for instructions to the jury. Requests for instructions to the jury when they are numerous or lengthy must be submitted to the trial judge in time for him properly to examine them. Otherwise he is justified in refusing them as a whole.2 In the Southern District of New York it is customary to receive requests after the charge has been delivered, but the trial judge is not then held to the same degree of accountability

29 Tubbs v. U. S., C. C. A., 105 Fed. 59, 44 C. C. A., 357; Holloway v. Reg, 17 Q. B. 317; 2 Den. C. C. 287, 17 Jur. 825, 79 E. C. L. 317; Reg v. Bullock, Dears. C. C. 653, 25 L. J. M. C. 92; Cribb v. State, Fla. 409; Josslyn v. Commonwealth, 6 Metc. (Mass.) 236; Boose State, 10 Ohio St. 575.

V.

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35 Doyle v. U. S., 10 Fed. 269.

36 Ball v. U. S., 140 U. S. 118, 35 L. ed. 377; Stone v. U. S., C. C. A., 64 Fed. 667.

§ 527d. 1 MacFadden v. U. S., C. C. A., 165 Fed. 51.

2 Ibid.

3 Linn v. U. S., C. C. A., 251 Fed. 476.

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