Breese v. United States

108 F. 804, 48 C.C.A. 36, 1901 U.S. App. LEXIS 3825

Opinion

PER CURIAM.

We have considered the arguments upon the rehearing of this cause. The opinion of the court is unchanged as to the conclusions reached that there was no error in the court below in overruling the demurrer and in not granting the motion to quash, and upon tbe various points decided in the progress of the cause. 3iut, inasmuch as the strong opinion expressed by the judge below in his charge to the jury, in which he used the words “that, in his opinion, it was the duty of the jury to convict the defendant,” was calculated to mislead the jury, who perhaps construed this language as a direction on the part of the court, we think that it would be proper to grant a new trial. For these reasons the case is remanded to the court below, with instructions to grant a new trial.

UBAWLEY, District Judge, dissents.