Opinion
No. 2792.
July 22, 1929.
Appeal from the District Court of the United States for the Northern District of West Virignia, at Elkins; William E. Baker, Judge.
For opinion of court below, see 27 F.2d 366.
John B. Wyatt, of Clarksburg, W. Va., for appellant.
Arthur Arnold, U.S. Atty., of Piedmont, W. Va., and Russell L. Furbee, Asst. U.S. Atty., of Fairmont, W. Va.
Before PARKER and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.
The majority of the court are of the opinion that this case cannot be distinguished in principle from the case of Isner v. U.S. (C.C.A.) 8 F.2d 487, and that consequently the portions of the charge complained of constituted reversible error. The principles of law involved were clearly set forth in the opinion of Judge Webb, speaking for this court, in the Isner Case. That decision has never been overruled, and must be followed as the law applicable in such cases. The judgment of the District Court will accordingly be reversed, and the case will be remanded for a new trial.
Reversed.
McCLINTIC, District Judge, dissents.