Page:Federal Reporter, 1st Series, Volume 4.djvu/417

 BBANO V. UNITED STATES. 403 �circumstances in the case, that a suffioient case Lad been made out to authorize the defendant's conviction." �It is insisted by the defendant that it was errer to refuse to charge in accordance -with request 3, because the in- dictment does net charge the defendant with the offence of receiving a letter from a post-office, and because there waa no evidence that he took or received a letter from a post-office, but evidence only at most which tended to show that he took from the delivery box of the Cumberland House letters an- swering the advertisement, which had corne through the post-office and been put into such delivery box. It is also insisted by the defendant that it was error to refuse to charge in accordance with request 4, because, by such refusai, in connection with what was said in the charge in regard to receiving the answers to the advertisement, the jury were permitted to convict the defendant of an offence with which he was not charged in the indictment. In regard to request 3, the remark before made applies, that the whole evidence is not set forth in the bill of exceptions. Moreover, if the proposition in request 3 was true, it was not error not to charge it. It was irrelevant. The converse of the proposi- tion was not asserted by the court. The jury were not charged that the defendant was on trial for receiving a letter from a post-office, There is nothing in the charge as set foyth totbateffect. The jury were instructed that the question was whether the defendant devised the scheme to defraud, and mailed the letter to the Malone Palladium, and received the answers to the advertisement; and that unless they found againstthe defendant on this question he could not be convicted. Evidence had been given to show that the defendant received the answers to the advertisement — not that he received them from the post-office, but that he had them in bis possession, and had taken them from the box in the Cumberland House. No other evidence appears tending to show that he received them from a post-office. The part of the charge referred to was was not excepted to by the defendant. It was too favorable to the defendant, if anything. The government might well bave complained of it as requiring more, under ■ the in- ����