BREESE v. UNITED STATES

BREESE v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. May 18, 1901.) No. 338. Criminal Law — Instructions—New Trial. An instruction on a trial for violating the banking law that, “in his opinion, it was the duty of the jury to convict the defendant,” was ground for new trial, as calculated to mislead the jury, who would, perhaps, construe the language as a direction on the part of the court. Brawley, District Judge, dissenting. On Rehearing. For former opinion, see 106 Fed. 680. J. C. Pritchard and Charles A. Moore (Pritchard & Rollins, Tucker & Murphy, and Joseph S. Adams, on the briefs), for plaintiff in error. William P. Bynum, Jr., Sp. U. S. Atty. (A. E. Holton, U. S. Atty., and A. H. Price, Asst. TJ. S. Atty., on the brief), for defendant in’ error. Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. We have considered the arguments upon the rehearing of this cause. The opinion of the court is unchanged as to the conclusions reached that there was no error in the court below in overruling the demurrer and in not granting the motion to quash, and upon tbe various points decided in the progress of the cause. 3iut, inasmuch as the strong opinion expressed by the judge below in his charge to the jury, in which he used the words “that, in his opinion, it was the duty of the jury to convict the defendant,” was calculated to mislead the jury, who perhaps construed this language as a direction on the part of the court, we think that it would be proper to grant a new trial. For these reasons the case is remanded to the court below, with instructions to grant a new trial. UBAWLEY, District Judge, dissents.