Distinguished
Distinguished by Hanish v. United States, 227 F. 584 (1915)
Hibbard v. United States, 172 Fed. 66, 71, 96 C. C. A. 554 (in this court), is also distinguishable, because the trial court repeatedly commented upon the nonproduction of the documents there in question, thus carrying to the jury a prejudicial implication.
The opinion
On Rehearing.
PER CURIAM.
The petition for rehearing is denied. We do not wish, however, that there should be any misunderstanding respecting our holding on the instruction referred to in subdivision 5 of the opinion. Standing by itselfj as an abstract proposition of law, the instruction is not erroneous. The error consists in applying it to a case wherein, apart from the intent, the act is colorless; color being thereby imparted, not to the intent by the color of the act, as the law implies, but to the act itself by the color borrowed for the intent. In cases like this where the act itself is, apart from the intent, colorless, the color of the intent must be proven as any other element of criminality is proven. The instruction as given (bearing in mind the case to which it was applied), though correct as an abstract proposition of law, tended to confuse the jury upon what, in this case, was the burden on the government, and thereby, in our judgment, prejudiced the plaintiff in error.