When the record in a criminal case brought here by the defendant
is meagre, containing only a small portion of the evidence, this
Court must assume, as the verdict was sustained by the court below,
that the testimony was sufficient to establish defendant's
guilt.
When a defendant is tried on an indictment charging false
entries at different times running through several months, it is no
error to admit evidence of such acts during the whole period,
although he may be found guilty of only one such act.
Evidence having been given bearing upon one such alleged false
entry, made at a period considerably later than the only one of
which the defendant was found guilty, no advantage can be taken by
the defendant here of the refusal of the court below to allow a
cross-question touching such evidence.
It is common practice and no error to recall a jury, after they
have been in deliberation for a length of time, for the purpose of
ascertaining what difficulties they have in the consideration of
the case, and of making proper efforts to assist them in their
solution, and the time at which such recall shall be made must be
left to the discretion of the trial court.
There is nothing in the record to show that the court in this
case abused this discretion.
Rulings not specifically excepted to below are not reviewable
here.
Page 155 U. S. 118
The rule repeated that in a federal court, the presiding judge
may express to the jury his opinion as to the weight of
evidence.
In making such a statement, he is under no obligation to
recapitulate all the items of the evidence, nor even all bearing on
a single question.
On May 13, 1893, the grand jury of the United States for the
Western Division of the Eastern District of Arkansas presented an
indictment against Horace G. Allis under section 5209 of the
Revised Statutes. This section, so far as is material to this case,
reads as follows:
"Every president . . . of any association . . . who makes any
false entry in any book . . . of the association . . . with intent
. . . to injure or defraud the association or any other company,
body politic or corporate, or any individual person, or to deceive
any officer of the association, or any agent appointed to examine
the affairs of any such association . . . shall be deemed
guilty,"
etc.
The indictment consisted of twenty-five counts. The defendant
pleaded not guilty, and the case came on for trial on November 27,
1893. This trial resulted in a verdict of guilty on the fourteenth
count, upon which verdict the defendant was sentenced to
imprisonment for the term of five years. The particular charge in
that count was the making of an entry in February, 1892, on the
books of the First National Bank of Little Rock, of which defendant
was the president, of the sum of fifty thousand dollars ($50,000)
to the credit of his individual account. To reverse the judgment
and sentence against him, the defendant sued out a writ of error
from this Court.
MR. JUSTICE BREWER delivered the opinion of the Court.
The meager record gives us little information as to the merits
of this case, and presents but few questions for our
consideration.
Page 155 U. S. 119
As the verdict was sustained by the trial judge, we must assume
that the testimony, only a small portion of which is before us, was
sufficient to establish the guilt of the defendant, and unless
error is disclosed in the special matters presented to our
consideration the judgment must be affirmed.
Upon the trial, the court, over the objections of the defendant,
permitted a witness, from an examination of the books of the bank,
to testify to the condition of the defendant's private account from
February to December, 1892. It is insisted that this testimony was
calculated to prejudice the jury against the defendant; that the
items of the entire account were not in issue; that they were not
within the scope of the indictment, and that therefore the
defendant's attention had not been called to them, and he could not
be prepared to defend against them. There are two sufficient
answers to these objections: (1) while the defendant was found
guilty only on one, he was being tried on twenty-five counts, which
counts charged false entries at different times running from
February to December, and therefore testimony was competent as to
the condition of his account stretching through the entire time;
(2) the gravamen of this offense is the false entry with intent to
injure, defraud, or deceive, and it was competent to show the state
of the defendant's account not merely at the very day the false
entry was made, but also before and after that date, for the
purpose of throwing light on the intent with which it was made.
Again, a bookkeeper, having testified to the making of false
entries under the direction of the defendant, was asked on
cross-examination whether a report prepared by him in September, in
the absence of the defendant from the state, did not contain the
identical false entry subsequently found in the December report,
the making of which last entry was the offense charged in one of
the counts of the indictment. The court refused to permit an answer
to this question. As the jury did not find the defendant guilty on
that count, and as the question related to matters occurring more
than six months after the false entry of which he was found guilty,
and to an entirely different transaction, it is obvious that the
defendant was not prejudiced by the ruling.
Page 155 U. S. 120
It is further insisted that the court erred in permitting the
translation of a cipher telegram from the defendant to be received
in evidence and read to the jury. It is sufficient to say in
respect to this matter that no exceptions were taken to the rulings
of the court, and indeed no objections were made to the admission
of the testimony after all the preliminary proofs had been
received.
The other errors complained of are in the charge to the jury. It
appears from the bill of exceptions that after the jury had been
deliberating for several hours on the case, the court called them
into the courtroom and inquired if they had reached a verdict. On
being informed that they had not, the court asked if there was any
portion of the charge the rereading of which would be of any
assistance to them. To which question the foreman responded that a
portion thereof was not fully understood by all of the jury,
to-wit, that in reference to the weight of the testimony of the
witnesses. Thereupon the court reread that portion. It further
stated that the jury were at liberty to conduct their deliberations
as they chose, but that he would call their attention again to the
part of the charge relating to the fourteenth, fifteenth, eighth,
and ninth counts of the indictment, and proceeded to reread that
part. In the portion reread, after a reference to the alleged false
credit of $50,000, was this language:
"And if he caused these entries to be made, with what intent did
he do so? If a customer or friend of yours who owed you $40,000 on
account should come to you and tell you that he had deposited
$50,000 to your credit in the German National Bank of Little Rock,
and that he wanted a receipt for the $40,000 that he owed you, and
wanted a credit for the other $10,000, and you should give him the
receipt and the credit, and should subsequently learn that he had
never deposited one dollar in that bank for you, with what intent
would you conclude he had made these statements? Would you think it
was with an honest purpose, or with some intent to injure or
defraud you?"
The bill of exceptions also contains other parts of the charge,
as follows:
"You are not bound to be governed by any statement
Page 155 U. S. 121
of the evidence made by the court, but if your recollection
accords with that of the court you may accept it, and if it differs
from it you may be governed by your own memory. It is your
exclusive province and duty to determine the issues of fact here
presented, and the weight and credibility of the testimony of the
witnesses, and by your determination of these questions the court
will be bound. If in the course of what the court may say to you
any expression of opinion should drop as to the disputed issues of
fact or the credibility of the testimony of the witnesses, you are
not bound by any such expression, but it is your privilege to adopt
or disregard it as you may see fit."
"The court has reviewed the counts of this indictment, and
called your attention to some of the important evidence, in the
hope that this might be of some assistance to you in reaching a
just verdict. There is much testimony bearing upon many of these
counts that has not been called to your attention. You will
consider that as carefully and as well as that which has been
referred to, and will remember that, whatever may have been said by
the court, you are the exclusive judges of the questions of fact
and of the credibility of the witnesses."
Closing its remarks to the jury at the time of their recall, it
said:
"Of course, gentlemen of the jury, you must consider all the
other parts of the charge heretofore read to you also. I have
simply called your attention to these four counts, thinking
possibly I might assist you in arriving at a just conclusion."
"The court and jury are here to come to a just and righteous
result. No doubt you are as anxious to reach it as am I."
"So anxious is the court that, having spent now two weeks in the
trial of this cause, I am willing to stay here another, if by that
means we may be able to reach a just and proper result in this
trial. You may retire."
To the charge, of which the only portions preserved in the
record are those just referred to, a single exception was taken in
the following words:
"The defendant excepts to the action of the court in recalling
the jury, and in arguing the testimony,
Page 155 U. S. 122
and in stating part of the testimony on certain points without
stating the entire testimony."
It is now insisted that the court expressed an opinion as to the
inference to be drawn from the facts, argued the question of intent
to the jury, and sought to coerce a verdict. But the exception
taken is not sufficient to bring all these matters before us. There
is no intimation in the exception that the defendant at the time
thought that the court was trying to coerce the jury, or suggested
that its language might have such an influence upon them. Evidently
the claim of coercion is an afterthought from subsequent study of
the record. But it is settled that no such afterthought justifies a
reviewing court in reversing the judgment. A party must make every
reasonable effort to secure from the trial court correct rulings,
or such at least as are satisfactory to him, before he will be
permitted to ask any review by the appellate tribunal, and to that
end he must be distinct and specific in his objections and
exceptions. Rule 4 of this Court provides:
"The party excepting shall be required to state distinctly the
several matters of law in such charge to which he excepts, and
those matters of law, and those only, shall be inserted in the bill
of exceptions and allowed by the court."
Repeated decisions have emphasized the necessity of a strict
adherence to this rule.
"However it might pain us to see injustice perpetuated by a
judgment which we are precluded from reviewing by the absence of
proper exceptions to the action of the court below, justice itself,
and fairness to the court which makes the rulings complained of,
require that the attention of that court shall be specifically
called to the precise point to which exception is taken, that it
may have an opportunity to reconsider the matter and remove the
ground of exception."
Harvey v.
Tyler, 2 Wall. 328,
69 U. S.
339.
"If it was intended to save an exception as to distinct
propositions embodied in the instructions, the attention of the
court should have been directed to the specific points concerning
which it was supposed error had been committed."
Moulor v. Am. Life Ins. Co., 111 U.
S. 335,
111 U. S.
337.
"An exception 'to all and each part' of the charge gave no
information whatever as to what was in the mind of the excepting
party,
Page 155 U. S. 123
and therefore gave no opportunity to the trial court to correct
any error committed by it."
Block v. Darling, 140 U. S. 234,
140 U. S. 238.
See also Phoenix Life Ins. Co. v. Raddin, 120 U.
S. 183, and cases cited in the opinion;
Colorado
Mining Co. v. Fraser, 130 U. S. 611;
Anthony v. Louisville & Nashville Railroad,
132 U. S. 172. We
see nothing in this case to withdraw it from the scope and control
of this rule.
The specific matters excepted to are first, the action of the
court in recalling the jury; second, its arguing the testimony; and
third, its stating part of the testimony on certain points without
stating the entire testimony. It is a familiar practice to recall a
jury, after they have been in deliberation for any length of time,
for the purpose of ascertaining what difficulties they have in the
consideration of the case, and of making proper efforts to assist
them in the solution of those difficulties. It would be startling
to have such action held to be error, and error sufficient to
reverse a judgment. The time at which such a recall shall be made,
if at all, must be left to the sound discretion of the trial court,
and there is nothing in the record to show that the court, in the
case at the bar, abused this discretion, or failed to wait a
reasonable time for the consideration of the case by the jury under
the charge as already given.
So far as "arguing the testimony" is concerned, the only part of
the charge that can be considered as even tending in that direction
was that part referring to the question of intent. We see nothing
in this of which any just complaint can be made. The illustration
given by the court was apt and fair, and if it bore hardly upon the
defendant it was only because the transaction of which he was
charged was one of like character, and indicative of the same
intent. The illustration was put in the form of a question, and no
affirmation was made as to the intent that must be presumed
therefrom. Even if it contained an expression of opinion, such
expression is permissible in the federal courts.
Simmons v.
United States, 142 U. S. 148;
Doyle v. Railway Co., 147 U. S. 413.
Page 155 U. S. 124
So far as respects the complaint that the court stated part of
the testimony on a certain point without stating all, we know of no
rule that compels a court to recapitulate all the items of the
evidence, even all bearing upon a single question. There was no
intimation that all the testimony bearing upon any particular point
was stated. On the contrary, the plain declaration was that there
was other testimony than that mentioned, and the jury were
admonished to give that not mentioned as full and careful
consideration as that mentioned.
So far as the record discloses, the charge of the court and it
rulings on the trial were eminently fair and considerate of the
rights of the defendant. In none of the matters referred to do we
find any error, and therefore the judgment is
Affirmed.