There are eleven assignments of error The first part of the eighth and eleventh assignments relate to a failure on the part of the court to give certain instructions. The record does not show that there was a request for such instructions. The second, fourth, fifth, sixth, seventh, part of the eighth, ninth, and tenth assignments relate to alleged error in the instructions given by the court. No exception is shown by the record to have been taken. The twelfth and thirteenth assignments of error are based upon the alleged fact that the verdict was against the weight of evidence. The third assignment of error is based upon the refusal of the court to give an instruction which was requested.
The statement of the record is: 'The defendant asked the following special instruction, which was refused: 'Unless you find from the evidence that the defendant was the attorney, agent, or other person engaged in prosecuting the pension claims of Anderson, Haynes, and Bloodson, the court instructs you to find for the defendant.' 'I think I have given this instruction in the general charge, and, believing the charge on this point is sufficient full, further instruction is declined. Clark, J.' To which action and ruling of the court in so refusing to give said special instructions the defendant then and there excepted.' [170 U.S. 210, 211] J. M. Greer, for plaintiff in error.
Asst. Atty. Gen. Boyd, for the United States.
Mr. Justice McKENNA, after stating the case, delivered the opinion of the court.
We cannot regard as error the omission of the court to give instructions which were not asked. In Isaacs v. U. S., 159 U.S. 487, 491 , 16 S. Sup. Ct. 51, Mr. Justice Brown said: 'It is no ground for reversal that the court omitted to give instructions, [170 U.S. 210, 212] where they were not requested by the defendant. It is sufficient that the court gave no erroneous instructions. Pennock v. Dialogue, 2 Pet. 1, 15; Railway Co. v. Volk, 151 U.S. 73, 78 , 14 S. Sup. Ct. 239.' Nor are instructions which were given, but not excepted to, subject to review. Tucker v. U. S., 151 U.S. 164 , 14 Sup. Ct. 299; St. Clair v. U. S., 154 U.S. 134, 153 , 14 S. Sup. Ct. 1002.
We are confined, therefore, to the consideration of the second assignment of error. It is not well taken. As the court said in refusing it, the charge of the court was 'sufficiently full.' The court read to the jury section 5485 of the Revised States, and stated that the indictment was predicated on it. The statute provides that 'any agent or attorney, or any other person instrumental in prosecuting any claim for pension or bounty land, who shall wrongfully withhold or wrongfully demand from a pensioner or claimant any portion of the pension or claim allowed, shall be guilty of a high misdemeanor.'
And then, after explaining the indictment, and stating the rules of evidence, degrees of proof required, the court said: 'o w, with these general observations that are applicable and will be kept in mind by you throughout the case, we come to the testimony in the case, and in respect to that it appears from the statute, as you have observed, that it is necessary in order to make the case against the defendant [first] that he must have been the agent or attorney of the pensioner, or he must have been instrumental in the prosecution of the pension claim before he falls within the category of the persons who are subject to the provisions of the statute, and [secondly] he must withhold from the pensioner all or a part of what was due the pensioner claimant; so that two propositions are necessary to be established: The defendant was an agent or instrumental in the prosecution of the claim, and, secondly, that he withheld from the pensioner money that belonged to the pensioner, some part of the pension that was allowed.'
The language of the court was explicit and unmistakable. It is fuller and more elaborate than the instruction requested.
The alleged fact that the verdict was against the weight of [170 U.S. 210, 213] evidence we are precluded from considering, if there was any evidence proper to go to the jury in support of the verdict. Crumpton v. U. S., 138 U.S. 361 , 11 Sup. Ct. 355; Moore v. U. S., 150 U.S. 57, 61 , 14 S. Sup. Ct. 26.
In this case there was certainly evidence proper to go to the jury.
There is no error in the record, and the judgment of the circuit court is affirmed.