FABIAN v. UNITED STATES

FABIAN v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. November 19, 1926.) No. 85. Criminal law <§=>826 — Refusal of requests to charge, tendered after close of instructions to jury, is justified. Trial jiidge is justified in refusing requests to charge, first tendered after close of his colloquial instructions to jury. In Error to the District Court of the United States for the Southern District of New York. Joseph Babian was convicted of an offense, and he brings error. Affirmed. M. Michael Edelstein, of New York City, for plaintiff in error. Emory R. Buckner, U. S. Atty., of New York City (Robert B. Watts, Asst. U. S. Atty., of New York City, of counsel), for the United States. Before HOUGH, MANTON, and HAND, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. After careful examination of this record, we think the propositions of law concerning which plaintiff in error now complains were all set forth in the colloquial charge of the eourt, to which no exception was taken. We repeat what was said in Gruher v. United States, 255 F. 474, 166 C. C. A. 550, as to our right to notice a plain error without exception, but we only do it to prevent injustice. This evidence shows conclusively that no injustice was done in finding the plaintiff in error guilty. We likewise again point out that a trial judge is entirely justified in refusing to consider requests to charge first tendered after the close of his colloquial instructions to the jury. See La Fountain v. United States (C. C. A.) 14 F.(2d) 562. Judgment affirmed.