McDonnell v. United States , 133 F. 293 ( 1904 )

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The indictment charged that the plaintiff in error fraudulently intended to cause Clay A. Straley to pay him the sum of $12.50 in exchange for a locket of far less value than the sum of $12.50. The court instructed the jury that the plaintiff in error could not be convicted upon this charge unless the evidence satisfied the jury beyond all reasonable doubt that the locket referred to in the indictment was of far less value than the sum of $12.50. The assignments of error are that the court failed to instruct the jury to acquit the plaintiff in error, that the evidence was insufficient to justify the verdict, and that the court overruled the motion of plaintiff in error for a new trial. But there appears in the bill of exceptions no request for an instruction to acquit the plaintiff in error, and no exception to any of the instructions. It is well settled that where no motion is made for an instructed verdict, and, without objection, the court is permitted to charge the jury on the assumption that there is sufficient evidence to justify the submission of the case to them, the objection that there was no evidence to support the verdict cannot be heard and considered in an appellate court. Hartford Life Ins. Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 496; Village of Alexandria v. Stabler, 50 Fed. 689, 1 C. C. A. 616; German Ins. Co. of Freeport v. Frederick, 58 Fed. 144, 7 C. C. A. 112; Pacific Mut. Life Ins. Co. v. Snowden, 58 Fed. 342, 7 C. C. A. 264; Crockett v. Miller, 112 Fed. 729, 50 C. C. A. 447. This court is precluded, therefore, from considering the question of the sufficiency o£ the evidence to justify the verdict. The granting or denying a motion) for a new trial rests in the sound discretion of the trial court, and is not reviewable. This has always been the rule in the federal courts. Harless v. United States, 92 Fed. 353, 34 C. C. A. 400; Smith v. Hopkins, 120 Fed. 921, 57 C. C. A. 193.

The judgment of the District Court will be affirmed.