No. 150.

170 U.S. 210 (1898)


Supreme Court of United States.

Decided April 25, 1898.

Attorney(s) appearing for the Case

Mr. James M. Greer for plaintiff in error.

Mr. Assistant Attorney General Boyd for defendants in error.

MR. JUSTICE McKENNA, after stating the case, delivered the opinion of the court.

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, 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; Texas and Pacific R'y Co. v. Volk, 151 U.S. 73, 78." Nor are instructions which were given but not excepted to subject to review. Tucker v. United States, 151 U.S. 164; St. Clair v. United States, 154 U.S. 134, 153.

We are confined, therefore, to the consideration of the second assignment of error. It is not well taken. As the court said in refusing it, the charge of the court was "sufficiently full." The court read to the jury section 5485 of the Revised Statutes, and stated that the indictment was predicated on it. The statute provides that "any agent or attorney, or any other person instrumental in prosecuting any claim for pension or bounty land, who shall wrongfully withhold or wrongfully demand from a pensioner or claimant any portion of the pension or claim allowed, shall be guilty of a high misdemeanor."

And then, after explaining the indictment and stating the rules of evidence, degrees of proof required, the court said: "Now, with these general observations that are applicable and will be kept in mind by you throughout the case, we come to the testimony in the case, and in respect to that it appears from the statute, as you have observed, that it is necessary in order to make the case against the defendant (first) that he must have been the agent or attorney of the pensioner, or he must have been instrumental in the prosecution of the pension claim before he falls within the category of the persons who are subject to the provisions of the statute, and (secondly) he must withhold from the pensioner all or a part of what was due the pensioner claimant, so that two propositions are necessary to be established: The defendant was an agent or instrumental in the prosecution of the claim, and, secondly, that he withheld from the pensioner money that belonged to the pensioner, some part of the pension that was allowed."

The language of the court was explicit and unmistakable. It is fuller and more elaborate than the instruction requested.

The alleged fact that the verdict was against the weight of evidence we are precluded from considering, if there was any evidence proper to go to the jury in support of the verdict. Crumpton v. United States, 138 U.S. 361; Moore v. United States, 150. U.S. 57, 61.

In this case there was certainly evidence proper to go to the jury.

There is no error in the record, and the judgment of the Circuit Court is



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