Condello v. United States

Second Circuit

Condello v. United States

297 F. 200, 1924 U.S. App. LEXIS 2799

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 25, 1924

DocketNo. 179

StatusPublished

This text of 297 F. 200 (Condello v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Condello v. United States, 297 F. 200, 1924 U.S. App. LEXIS 2799 (2d Cir. 1924).

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Opinion

HOUGH, Circuit Judge

(after stating the facts as above). The exception was to “the refusal of the court to charge as requested.” In other words, it is assigned for error that the' court refused to charge totidem verbis a proposition of law, which for purposes of discussion we assume to be sound. What, under existing prohibition laws, is the exact measure of a druggist’s duty in respect to the signature on a whisky prescription, we do not feel obliged to ascertain at 'present, because the point is not material to the case at bar. But we do again point out that not every refusal to charge sound law constitutes reversible error, because that particular legal proposition may not be material to the question before the jury. Kalmanson v. United States (C. C. A.) 287 Fed. 71. And even in criminal causes reversible error means substantial error; i. e., that which by reasonable inference might have prejudiced the party complaining. Linn v. United States, 251 Fed. 476, 483, 163 C. C. A. 470, and cases cited.

In this case the single point shown by the bill of exceptions, and. insisted on by the court to the jury, was whether there ever was anything that looked like a prescription produced by any one to this defendant as a reason for his admitted production of the admitted whisky. There was not the slightest evidence that Condello examined the sig[202]*202nature, nor any suggestion that any signature was false, forged, or unauthorized. The plain question was whether Condello’s stoiy about what purported to be a prescription was or was not wholly false. On that point the charge quoted above told the jury that, if they believed Condello to have bona fide filled what he had in his own evidence called a prescription, he was guilty of no violation of law. No one could ask more than that on the actual evidence; and the request concerning-genuineness of signature was not only immaterial, but sought to inject into the case a false issue — a too common way of attempting to befog a jury, by making the simple appear difficult. There was nothing in the actual or real issue, but a question of veracity. It was right to keep the jury’s attention on that one material point.

Judgment affirmed.

MAYER, Circuit Judge, dissents.

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HOUGH, Circuit Judge

(after stating the facts as above). The exception was to “the refusal of the court to charge as requested.” In other words, it is assigned for error that the' court refused to charge totidem verbis a proposition of law, which for purposes of discussion we assume to be sound. What, under existing prohibition laws, is the exact measure of a druggist’s duty in respect to the signature on a whisky prescription, we do not feel obliged to ascertain at 'present, because the point is not material to the case at bar. But we do again point out that not every refusal to charge sound law constitutes reversible error, because that particular legal proposition may not be material to the question before the jury. Kalmanson v. United States (C. C. A.) 287 Fed. 71. And even in criminal causes reversible error means substantial error; i. e., that which by reasonable inference might have prejudiced the party complaining. Linn v. United States, 251 Fed. 476, 483, 163 C. C. A. 470, and cases cited.

In this case the single point shown by the bill of exceptions, and. insisted on by the court to the jury, was whether there ever was anything that looked like a prescription produced by any one to this defendant as a reason for his admitted production of the admitted whisky. There was not the slightest evidence that Condello examined the sig[202]*202nature, nor any suggestion that any signature was false, forged, or unauthorized. The plain question was whether Condello’s stoiy about what purported to be a prescription was or was not wholly false. On that point the charge quoted above told the jury that, if they believed Condello to have bona fide filled what he had in his own evidence called a prescription, he was guilty of no violation of law. No one could ask more than that on the actual evidence; and the request concerning-genuineness of signature was not only immaterial, but sought to inject into the case a false issue — a too common way of attempting to befog a jury, by making the simple appear difficult. There was nothing in the actual or real issue, but a question of veracity. It was right to keep the jury’s attention on that one material point.

Judgment affirmed.

MAYER, Circuit Judge, dissents.

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297 F. 200, 1924 U.S. App. LEXIS 2799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/condello-v-united-states-ca2-1924.

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