WARD, Circuit Judge.
The defendants, together with W. T. Brice, were indicted under the first count for conspiracy to commit an offense against the United States under section 37 of the Crim[627]*627inal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. 1916, § 10201]), viz. to abstract and misapply the funds of the First National Bank of Amsterdam, and under 460 following counts with the crime of aiding and abetting Brice to abstract and misapply the funds of the said bank, under section 332 of the Criminal Code (Comp. St. 1916, § 10506), and section 5209, U. S. Rev. Stat. (Comp, St. 1916, § 9772). The government relied at the trial on only 200 of these counts.
The defendant Brice pleaded guilty to the conspiracy count, was the chief witness of the government and is a self-confessed thief. He was a clerk of the bank with very general duties, and, though not an officer, nor even cashier or teller, was apparently the most active person in its daily management. „ The total amount of his thefts was some S170.000, and of these moneys the defendant Rogers received $12,000, the defendant Oppenheim $5,000, and the corporation of Oppenheim & Co., $18,531.48, or $35,531.48 in all. The defendant Murphy, who represented Brice in certain realty operations in New York City, received about $33,000.
The trial occupied some seven weeks and the record on appeal consists of 4,211 printed pages. The jury found all the defendants guilty upon all the counts in issue, and each defendant sued out a writ of error.
[1] The defendants Oppenheim and Rogers asked to be tried separately from Murphy. This was a matter of discretion with the trial judge, and we cannot say his refusal was an abuse of discretion.
[2] The jury’s findings of fact are binding upon us when there is any evidence to support them, and we think there was evidence both as to the conspiracy count and the aiding and abetting counts. We have therefore only to inquire in the first instance whether exceptions taken to the rulings of the court as matter of law were or were not good.
[3] The first exception is to the refusal of the court to charge the following requests:
“These defendants cannot be found guilty of conspiracy set forth in the first count in this indictment if these defendants believed that the money or lands that they received, as proven in this case were the property of William T. Brice.”
“These defendants cannot be found guilty of conspiracy as set forth iu the first count of the indictment if they did not know that the money and funds proven in this case to have been received by them was the property of the First National Bank of Amsterdam.”
Of course the question whether the defendants knew the moneys they were receiving from Brice belonged to the bank was of the first importance. Still, if they had conspired to get the moneys of the bank and had committed an overt act in furtherance of such conspiracy, they would be guilty even if they believed the moneys received from Brice were his own. This exception is not sustained.
[4] The defendants excepted to the charge of the court on the question of the effect to be given to evidence of defendants’ good character. The court charged :
“Evidence of good character may, in certain cases, when a reasonable doubt would not otherwise exist, create a reasonable doubt and turn the scales, so [628]*628to speak, if the evidence is nearly evenly balanced, and the Jury otherwise might' not have a reasonable doubt Substantial evidence of good character making it improbable that the defendant would commit the offense charged may when added to that already adduced by the defendant or defendants, or in connection with the weakness' and indefiniteness, or uncertainty, or unreliability of that produced by the government, create a reasonable doubt. But, gentlemen, when the evidence is clear, satisfactory, and convincing, backed up by letters written and documents made by the defendants and witnesses at the time of the happening of the transactions, and at the time of the occurrence to which they relate, and which are in question and excludes every hypothesis except that of guilt, and is consistent with guilt only, then a Jury should not avoid responsibility upon the ground or theory that the defendant may not be guilty.”
And the defendants’ request and the court’s answer on the same subject were as follows:
“ ‘The evidence of the previous good character of the defendants may of itself be sufficient to create a reasonable doubt.’ I have already charged fully on that. Evidence of previous good character may, in a doubtful case, where it hangs in the balance, and the jury will not otherwise have a reasonable doubt, come in, and the jury would say that a man of that character and stamp would not commit an offense, and, the evidence being doubtful, evenly balanced, they would give him the benefit of that doubt.”
We think this was error. The Supreme Court in Edgington v. United States, 164 U. S. 361, 17 Sup. Ct. 72, 41 L. Ed. 467, has held that evidence of good character may itself create a reasonable doubt when without it there would on the other evidence be no reasonable doubt, whereas the trial judge held that evidence of good character would only create a reasonable doubt if the evidence without it was evenly balanced. As in that case the jury must have a reasonable doubt, evidence of good character would be quite unnecessary.
[5] The defendants finally urged that the charge of the court was so one-sided as to amount to a summing up on behalf of the government. Examination of the charge constrains us to find that this criticism is just. Although no objection or exception was taken to it, we may consider it as a plain error under rule 11 of this court. Morse v. United States, 174 Fed. 539, 98 C. C. A. 321, 20 Ann. Cas. 938. See, also, Wiborg v. United States, 163 U. S. 632, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289; Crawford v. United States, 212 U. S. 183, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Mark Yick Hee v. United States, 223 Fed. 732, 139 C. C. A. 262.
The record on appeal contains the summing up of counsel; that for Oppénheim and -Rogers takes up 55 printed pages, for Murphy 57 pages, 'for the United States, 83 pages. It would not seem necessary for the court to have taken up much time in charging the jury after this very full discussion by counsel, but the charge, including answers to requests, takes up 78 pages. A supplemental charge after the jury returned for instructions October 26 at 12:15 a. m. takes up 4 pages more:
“The Foreman: Tour honor, we would like some instructions. We would like to know if a verdict can be brought on the first count or any other count against one or more defendants and not against all the defendants.
“The Court: On the first count you can say guilty as to any two, but not of course as against one, because — no, the charge is conspiracy by Brice, Murphy, Rogers, and Oppenheim. Of course it takes two to conspire, so that on [629]
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WARD, Circuit Judge.
The defendants, together with W. T. Brice, were indicted under the first count for conspiracy to commit an offense against the United States under section 37 of the Crim[627]*627inal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. 1916, § 10201]), viz. to abstract and misapply the funds of the First National Bank of Amsterdam, and under 460 following counts with the crime of aiding and abetting Brice to abstract and misapply the funds of the said bank, under section 332 of the Criminal Code (Comp. St. 1916, § 10506), and section 5209, U. S. Rev. Stat. (Comp, St. 1916, § 9772). The government relied at the trial on only 200 of these counts.
The defendant Brice pleaded guilty to the conspiracy count, was the chief witness of the government and is a self-confessed thief. He was a clerk of the bank with very general duties, and, though not an officer, nor even cashier or teller, was apparently the most active person in its daily management. „ The total amount of his thefts was some S170.000, and of these moneys the defendant Rogers received $12,000, the defendant Oppenheim $5,000, and the corporation of Oppenheim & Co., $18,531.48, or $35,531.48 in all. The defendant Murphy, who represented Brice in certain realty operations in New York City, received about $33,000.
The trial occupied some seven weeks and the record on appeal consists of 4,211 printed pages. The jury found all the defendants guilty upon all the counts in issue, and each defendant sued out a writ of error.
[1] The defendants Oppenheim and Rogers asked to be tried separately from Murphy. This was a matter of discretion with the trial judge, and we cannot say his refusal was an abuse of discretion.
[2] The jury’s findings of fact are binding upon us when there is any evidence to support them, and we think there was evidence both as to the conspiracy count and the aiding and abetting counts. We have therefore only to inquire in the first instance whether exceptions taken to the rulings of the court as matter of law were or were not good.
[3] The first exception is to the refusal of the court to charge the following requests:
“These defendants cannot be found guilty of conspiracy set forth in the first count in this indictment if these defendants believed that the money or lands that they received, as proven in this case were the property of William T. Brice.”
“These defendants cannot be found guilty of conspiracy as set forth iu the first count of the indictment if they did not know that the money and funds proven in this case to have been received by them was the property of the First National Bank of Amsterdam.”
Of course the question whether the defendants knew the moneys they were receiving from Brice belonged to the bank was of the first importance. Still, if they had conspired to get the moneys of the bank and had committed an overt act in furtherance of such conspiracy, they would be guilty even if they believed the moneys received from Brice were his own. This exception is not sustained.
[4] The defendants excepted to the charge of the court on the question of the effect to be given to evidence of defendants’ good character. The court charged :
“Evidence of good character may, in certain cases, when a reasonable doubt would not otherwise exist, create a reasonable doubt and turn the scales, so [628]*628to speak, if the evidence is nearly evenly balanced, and the Jury otherwise might' not have a reasonable doubt Substantial evidence of good character making it improbable that the defendant would commit the offense charged may when added to that already adduced by the defendant or defendants, or in connection with the weakness' and indefiniteness, or uncertainty, or unreliability of that produced by the government, create a reasonable doubt. But, gentlemen, when the evidence is clear, satisfactory, and convincing, backed up by letters written and documents made by the defendants and witnesses at the time of the happening of the transactions, and at the time of the occurrence to which they relate, and which are in question and excludes every hypothesis except that of guilt, and is consistent with guilt only, then a Jury should not avoid responsibility upon the ground or theory that the defendant may not be guilty.”
And the defendants’ request and the court’s answer on the same subject were as follows:
“ ‘The evidence of the previous good character of the defendants may of itself be sufficient to create a reasonable doubt.’ I have already charged fully on that. Evidence of previous good character may, in a doubtful case, where it hangs in the balance, and the jury will not otherwise have a reasonable doubt, come in, and the jury would say that a man of that character and stamp would not commit an offense, and, the evidence being doubtful, evenly balanced, they would give him the benefit of that doubt.”
We think this was error. The Supreme Court in Edgington v. United States, 164 U. S. 361, 17 Sup. Ct. 72, 41 L. Ed. 467, has held that evidence of good character may itself create a reasonable doubt when without it there would on the other evidence be no reasonable doubt, whereas the trial judge held that evidence of good character would only create a reasonable doubt if the evidence without it was evenly balanced. As in that case the jury must have a reasonable doubt, evidence of good character would be quite unnecessary.
[5] The defendants finally urged that the charge of the court was so one-sided as to amount to a summing up on behalf of the government. Examination of the charge constrains us to find that this criticism is just. Although no objection or exception was taken to it, we may consider it as a plain error under rule 11 of this court. Morse v. United States, 174 Fed. 539, 98 C. C. A. 321, 20 Ann. Cas. 938. See, also, Wiborg v. United States, 163 U. S. 632, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289; Crawford v. United States, 212 U. S. 183, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Mark Yick Hee v. United States, 223 Fed. 732, 139 C. C. A. 262.
The record on appeal contains the summing up of counsel; that for Oppénheim and -Rogers takes up 55 printed pages, for Murphy 57 pages, 'for the United States, 83 pages. It would not seem necessary for the court to have taken up much time in charging the jury after this very full discussion by counsel, but the charge, including answers to requests, takes up 78 pages. A supplemental charge after the jury returned for instructions October 26 at 12:15 a. m. takes up 4 pages more:
“The Foreman: Tour honor, we would like some instructions. We would like to know if a verdict can be brought on the first count or any other count against one or more defendants and not against all the defendants.
“The Court: On the first count you can say guilty as to any two, but not of course as against one, because — no, the charge is conspiracy by Brice, Murphy, Rogers, and Oppenheim. Of course it takes two to conspire, so that on [629]*629the first count It could be against one of these defendants on trial, or two, or all. Is not that correct, Mr. Brown?
“Mr. Brown: That is my understanding of the law, your honor.”
They returned again at 5:23 p. m., after 17 hours:
“The Court: Well, gentlemen, is there anything the court can do? Any further charge or instructions?
“The Foreman: We have looked the evidence over and worked hard over it and seem to be divided, and It does not look as if we could agree.
“The Court: Well, on the Questions of law- — divided on the Questions of law, legal questions?
“The Foreman: On questions of evidence.
“The Court: Anything 1 could call your attention to, gentlemen, in regard to the evidence? Is it in regard to the weight of the evidence or what the evidence is? «
“The Foreman: We would like to know the time when — the evidence as to when Howard J. Rogers first knew that there had been money appropriated from the bank, and also Baron Oppenheim.”
The court then gave a second supplemental charge, taking up 18 more printed pages. The fact that the defendants took no exception to the charge as one-sided and partial is quite natural, and did no harm. Counsel had a right to expect from time to time that the court would give a statement of the defendants’ defense. It is a very delicate operation to interrupt the court in his charge on the ground that it is one-sided, and after the charge has been rendered, an exception will be useless for practical purposes. Apparently the defendants’ counsel intended to take such an exception, but was not allowed to do so.
“Mr. Costello: If your honor please, I desire to except to all that you have stated here for the reason—
“The Court: Never mind your reasons. You may have an exception to all I have said.”
[8] It is of course impossible to set out this long' charge of 100 pages in extenso, but in our opinion it constitutes a detailed argument on behalf of the government, making almost no reference to the claims of the defense. We-fully recognize that a judge of the federal courts may go so far as to express his own opinion on the facts, provided he instructs the jury that they are the sole judges, but we do not think he has a right to persuade the jury as to the facts or to argue the case for either side. There is abundant authority to this effect. Hicks v. United States, 150 U. S. 442, 450-453, 14 Sup. Ct. 144, 37 L. Ed. 1137; Starr v. United States, 153 U. S. 614, 624-626, 14 Sup. Ct. 919, 38 L. Ed. 841; Allison v. United States, 160 U. S. 203, 207-211, 16 Sup. Ct. 252, 40 L. Ed. 395; Rudd v. United States, 173 Fed. 912, 97 C. C. A. 462. The words of the judge’s charge are the last words and the most weighty words that are dropped into the minds of the jury before they come to their verdict, and it is of the utmost importance that they should be calm and impartial. Almost the last words of this charge were:
“In all criminal cases, with possible rare exceptions, some one person or snore is more or less disgraced and in most instances sorrow is brought to some home; but this consideration is not the one or ones upon which jurors have a right to base a verdict, in whole or part,* or one that should in any degree affect the juror in making up his verdict. You have taken a solemn oath to decide this case upon the evidence under the law as it is declared to [630]*630you by the court. To do otherwise is to violate your oath and bring the administration of the law into contempt. If conviction is had it is for the court to impose sentence, tempering justice with mercy, even to the suspension of sentence, while executive clemency is with the President, who wields the pardoning power.”
And in the supplemental charge the judge returned to the same subject, saying:
“As I told you before, sympathy, passion, prejudice, and all that is not to cut any figure in the case. The pardoning power is with the President. If you believe and find the defendants) guilty or a defendant guilty, leniency in pronouncing sentence is with the court; and I think it is proper to say to you, so that there should be no dissension between you about that, there is a large number of counts in „ the indictment. Of course the court would have the power, if you found the defendants guilty on the large number of counts, to add up the sentences of one to follow the other; but discharge that from your mind. Leave that to the discretion and good judgment of the court. The court will not feel’ like making a life sentence or visiting vengeance on anybody. Do not let that cut any figure at all in your deliberations, gentlemen.”
After a further deliberation of several hours the jury returned at 10:10 p. m. and rendered their verdict as above.
The defendants may be all the government contends that they are, but, if so, they must be convicted in accordance with the rules of law.
The judgment is reversed.