Carney v. United States

Ninth Circuit

Carney v. United States

295 F. 606, 1924 U.S. App. LEXIS 3208

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 4, 1924

DocketNo. 4084

StatusPublished

Cited by6 cases

This text of 295 F. 606 (Carney v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carney v. United States, 295 F. 606, 1924 U.S. App. LEXIS 3208 (9th Cir. 1924).

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HUNT, Circuit Judge.

Camey, plaintiff in error, was convicted under three counts of an information charging violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The counts charged possession of intoxicating liquor intended for use in violation of law, possession of property designed for the manufacture of intoxicating liquor, and the maintenance of a common nuisance.

We are of the opinion that it was prejudicial to the rights of the defendant for the court to charge the jury in the language used and quoted in tire last point discussed in the dissenting opinion of Judge GILBERT. Conceding, always, the right of the judge to comment upon the evidence and to sum it up, even to the expression of opinion upon the facts, provided it is made perfectly clear to the jury that they are not bound by the expressed opinion of the judge, nevertheless in the exercise of the right there is always the limitation that the comments of the judge should be dispassionate and carefully guarded, so that the jurors shall be free to use their independent judgment. It seems to us that a juror, listening to the charge complained of, would feel that the court was, in effect, advising that, if they should acquit, it would be because they had been hoodwinked and deceived by trickery on the part of the defendant and his witnesses. Such strictures might well have been regarded as a moral command to reject the evidence of the defendant. Horning v. District of Columbia, 254 U. S. 135, 41 Sup. Ct. 53, 65 L. Ed. 185, is not applicable, for in that case the facts were agreed upon, or, as the court put it: “The external facts are not disputed.” Here they were in dispute. Defendant was a shift boss at a mipe, and away from his home during the daytime, and positively denied any knowledge or suspicion that the tenant who rented the room in his home had liquor therein, or had a still, or was maintaining a nuisance therein.

Except in respect to the one point, we agree with the views expressed by Judge GILBERT. For error in the instructions, defendant is entitled to have the" judgment against him set aside, and to be awarded a new trial.

Reversed.

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HUNT, Circuit Judge.

Camey, plaintiff in error, was convicted under three counts of an information charging violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The counts charged possession of intoxicating liquor intended for use in violation of law, possession of property designed for the manufacture of intoxicating liquor, and the maintenance of a common nuisance.

We are of the opinion that it was prejudicial to the rights of the defendant for the court to charge the jury in the language used and quoted in tire last point discussed in the dissenting opinion of Judge GILBERT. Conceding, always, the right of the judge to comment upon the evidence and to sum it up, even to the expression of opinion upon the facts, provided it is made perfectly clear to the jury that they are not bound by the expressed opinion of the judge, nevertheless in the exercise of the right there is always the limitation that the comments of the judge should be dispassionate and carefully guarded, so that the jurors shall be free to use their independent judgment. It seems to us that a juror, listening to the charge complained of, would feel that the court was, in effect, advising that, if they should acquit, it would be because they had been hoodwinked and deceived by trickery on the part of the defendant and his witnesses. Such strictures might well have been regarded as a moral command to reject the evidence of the defendant. Horning v. District of Columbia, 254 U. S. 135, 41 Sup. Ct. 53, 65 L. Ed. 185, is not applicable, for in that case the facts were agreed upon, or, as the court put it: “The external facts are not disputed.” Here they were in dispute. Defendant was a shift boss at a mipe, and away from his home during the daytime, and positively denied any knowledge or suspicion that the tenant who rented the room in his home had liquor therein, or had a still, or was maintaining a nuisance therein.

Except in respect to the one point, we agree with the views expressed by Judge GILBERT. For error in the instructions, defendant is entitled to have the" judgment against him set aside, and to be awarded a new trial.

Reversed.

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295 F. 606, 1924 U.S. App. LEXIS 3208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carney-v-united-states-ca9-1924.

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