HEARD v. UNITED STATES; DUNN v. SAME, 228 F. 503

PIOOK, Circuit Judge. Pleard was convicted of stealing from a railroad car certain packages of money, being interstate shipments by express (Act Eeb. 13, 1913, c. 50, 37 Stat. 670 [Comp. S't. 1913, §§ 8603, 8604]), Dunn of aiding and abetting him, and both of a conspiracy with the express messenger to commit the thefts (Penal Code [Act March 4, 1909, c. 321] § 37, 35 Stat. 1096 [Comp. St. 1913, § 10201]).

At the trial the court pointed out to the jury the material allegations of the indictment and then charged them as follows: “Now, gentlemen, it is not necessary for the government to prove every one of the material allegations beyond a reasonable doubt. It must prove them by evidence satisfactory to you that they are proven; but upon the whole evidence, before you can find them guilty, you must be satisfied of their guilt beyond a reasonable doubt.” A similar instruction was discussed and held erroneous in Spear and Porter v. United States, decided at this term.

It is urged by the government that a sufficient exception was not taken. The record shows that one of the counsel for defendants said; “I have no objection to any part of the charge except that, your honor, which dispenses with the proof, beyond a reasonable doubt, of every material allegation. I take an exception to that.” Manifestly the exception is plain and to the point. It is also contended that it does not appear the exception was taken before the jury retired. The record shows in progressive recitals the usual and ordinary course of a trial.

Immediately following the charge of the court appears a colloquy in which the court asked counsel for the government and for defendants whether additional instructions were desired. Upon receiving negative answers, the court then inquired about exceptions to the charge given, and in response the exception in question was taken with others. Further along the record recites that “thereupon the jury, after retiring, returned a verdict of guilty,” etc. We think it sufficiently appears that the exception was taken at thedrial and while the jury were still in the box. New Orleans & Northeastern R. Co. v. Jopes, 142 U.

S. 18, 21, 12 Sup. Ct. 109, 35 L. Ed. 919. The other assignments do not merit discussion. Because of the error in the charge, the sentences are reversed, and the cause is remanded for a new trial.