The opinion
HOUGH, Circuit Judge
(concurring). In the result announced by the court I concur, upon the ground that the instructions of the trial judge regarding the force and function of character evidence were such as to require reversal under ruling cases, of which Edgington v. United States, supra, is enough for this court. Nor can it be urged in excuse that such error was not prejudicial. Gilmer v. Higley, 110 U. S. 47 , 3 Sup. Ct. 471, 28 L. Ed. 62 ; Mexia v. Oliver, 148 U. S. 664 , 13 Sup. Ct. 754, 37 L. Ed. 602 ; Boston, etc., Co. v. O’Reilly, 158 U. S. at 337, 15 Sup. Ct. 830, 39 L. Ed. 1006 .
. The charge on this point, substantially followed, overuled New York cases; it was almost in the words of an instruction disapproved in Remsen v. People, 43 N. Y. 6 , which upset former practice in this state. See Wagner v. People, 54 Barb. (N. Y.) 367, affirmed * 41 N. Y. 684 ; also People v. Hammill, 2 Parker Cr. R. (N. Y.) 223; cf. People v. Conrow, 200 N. Y. 356 , 93 N. E. 943 .
With the rest of the majority opinion I cannot agree.. The so-called bill of exceptions herein consisted of the stenographer’s minutes, including all the remarks of counsel. Erom this history of trial it is not only evident that Brice was a confessed thief, but that the jury were fully warranted in believing (as they must have done) that these plaintiffs in error knew it, and used that knowledge to squeeze money for their own purposes out of him, knowing by his own statements that he had no means of producing the same other than dishonestly and from the bank.
It is true that the trial court, in common parlance, charged “against the defendants.” No other charge could have consisted with the facts,, and no objection or exception was taken to that charge. It is now said that the nature and merits of the defense were not sufficiently *631 dwelt upon. If there had been merit in the defense, it was a small matter to call the court’s attention to what had been omitted. To reverse on such ground, without -an objection duly taken, is stretching a rule of court, which says no more than that the court, “at its option, may notice a plain error not assigned.” The rule does not apply to nonexistent objections and exceptions; while generosity to defendants in criminal cases has never been more widely stated than that error will be sometimes noticed in such causes, when “the question was not properly raised by objection and exception.” Crawford v. United States, 212 U. S. at 194, 29 Sup, Ct. 260, 53 L. Ed. 465 , 15 Ann. Cas. 392. Here it was never raised at. all, and the same argument is made at this bar, as was adverted to in Drumm, etc., Co. v. Edmisson, 208 U. S. 540 , 28 Sup. Ct. 367, 52 L. Ed. 606 , thus:
“Plaintiff in error complained of certain remarks by the court which were said to be prejudicial. No objection was taken to the remarks complained of. Counsel now say that to have made objection would have made a bad matter worse. We cannot accept the excuse. We do not think the remarks had the misleading strength that is attributed to them; but at any rate it was the duty of counsel to object to them, and if then the court made matters worse it's action would be subject to review."
“Judex damnatur et nocens absolvitur” is a rewriting of the Roman maxim, descriptive of not a few modem decisions. The present record should furnish no opportunity for its application.