MAYS v. UNITED STATES, 289 F. 486

ROSE, Circuit Judge. The plaintiff in error will be called the defendant, as he was below. He was convicted of having attempted to bribe a deputy collector of internal revenue. His assignments of error cover a wide range, from the alleged unconstitutionality of the National Prohibition Act (41 Stat. 305) to the asserted unfairness of some things the attorney for the United States said in his closing argument. The evidence in the case shows, as the jury must have found, that the defendant was engaged in operating a still in the woods of Amherst county when the government officials appeared.

He ran, but was captured, and while being taken to Lynchburg to' be formally charged with the offense beforé a United States commissioner, and when the party had gone about a mile on their journey, he offered one of the agents, who was also a deputy collector of internal revenue $100 to “turn him loose.” The indictment alleged that the bribe was offered “not to arrest him.” His learned counsel strenuously contends that there was a fatal variance between the thing charged and -that proved. We do not think so.

It is true that, at the time the improper proposition was made, the defendant was already in custody; but no formal charge had as yet been made against him before any committing magistrate, and there was no record of anything which had taken place. When, subsequently, Lynchburg was reached, he was taken before a United States commissioner and a warrant in the usual form was issued against him.

Until that had been done, the arrest was still a continuing.process and if, before it was completed, the officer had turned him loose, the result, for many legal as well as practical purposes, would have been precisely the same as if hands had never been laid on him at all. It is unnecessary to say anything as to the alleged unconstitutionality' of the National Prohibition Act. Somethings must be considered'settled.

There is no merit in the contention that, before the defendant could be lawfully convicted of bribing the government officer not to: arrest him, he must have been found guilty of the offense for which the arrest was made. There is nothing of which the defendant has cause to complain in the instructions given or refused. The issue upon which the jury was to pass was simple, and the charge adequately and accurately submitted it for their determination. As we have heretofore said (Showalter v. U. S., 260 Fed. 719, 721, 171 C. C.

A. 457), it is only under exceptional circumstances that an appellate court will set aside a judgment because counsel, in arguing to the jury, attempted to draw an extreme or unjustified conclusion from the evidence. There is nothing to take the instant case out of the rule. Affirmed.