(after stating the facts as above). There seems to he no doubt that there was a proper case made for submission to the jury. In tho case of Swenzel, he was close by the brewery, tho water and electricity came from his house, and a shirt, which he at first admitted to be his, was found in the brew-, ery. There seems every reason to believe that Swenzel testified falsely about the ownership of this shirt, and also about his ignorance of what was going on in a place next to his residence, where a brewery was being installed and trucks were coming and going. He was unable to identify any other persons connected with the enterprise, and he and the defendant Bindel, with another defendant Sehwertz, against whom the information was dismissed, were the only persons identified who were about these premises. Swenzel’s story of the sale of the property and the installation of the browing plant by the purchasers is uncorroborated by any witness, and stands upon his own unsupported oath.
Bindel’s attempted flight, his assumed name and fantastic story about catching rabbits in his hands, coupled with the entries in his memorandum book of the number of brews on certain days in April, made a strong caso against him. Tho jury evidently believed the testimony of the government and thought that it sustained the information filed against both defendants. We can find no insufficiency of evidence preventing the submission to the jury.
In respect to the failure to charge as requested, it is to be noted that there was no exception by either defendant to the charge as such. The statement that Swenzel had the right to take the stand, and that when he took tho stand and testified in Ms own behalf he was a competent witness, and that the jury must consider his testimony as it would that of any other witness, keeping in mind the interest he had in the outcome of the case, was favorable to Swenzel. It called the attention of the jury to the fact that Swenzel, though a defendant, and as such having an interest in the outcome of the ease, ought to have his testimony considered as that of any other witness. It was a sort of eounlerpai’t of the caution frequently recommended in weighing the testimony of an accomplice.
*282It is suggested that these remarks tended to call the attention of the jury, to the fact that Bindel did not take the stand; but, if so, no exception was taken to them, and they may, especially in view of the acquiescence of counsel in this part of the charge, be regarded as directed' to Swenzel, with no thought of Bindel on the part of the court, counsel, or the jury.
It was recently argued before this court in the case of Becher v. United States, 5 F.(2d) 45, that it was reversible error for the trial judge, without request from a defendant, to charge the jury that no inference of guilt could be drawn from his failure to take the stand. It was argued that any allusion to the fact was reversible error. The court said as to this contention (page 49):
“It is no doubt better, if a defendant requests no charge upon the subject, for the trial judge to say nothing about it; but to say that, when he does, it is error, carries the doctrine of self-incrimination to an absurdity.”
Undoubtedly to say anything about the failure of a defendant to testify tends to keep that prejudicial consideration before the jury. If it is better, as this court has said, not to mention it unless requested, how can it be error not to deal with it, even if requested? It would seem strange that the request of a defendant, or his counsel, could make a charge compulsory which a court holds it better practice in general not to give. It is at least problematical whether mentioning Bindel’s right not to take the stand would not have impressed upon the jury a comparison between him and Swenzel, when as matters stood Swenzel might have been regarded as- covering the ground for both defendants, so that no further testimony was necessary. In other words, if Bindel chose to exercise his constitutional right and npt to testify, it seems exceedingly doubtful whether his situation would not have been prejudiced in fact by acceding to the charge requested.
Moreover, the request contained a further reiteration of the charge already given respecting the presumption of innocence and the burden of proof. It is common to attempt by reiterations in requests to charge so to impress these considerations upon a jury that they may come to feel that scarcely anything can be regarded as beyond a reasonable doubt. Even if that portion of the charge as to Bindel’s failure to testify should have been given by itself, it was coupled with other requests as to matters which the judge had amply covered. If the defendants wished the charge about Bindel’s failure to testify to be given separately, they should have submitted it as a separate request, or, in any event, should have especially excepted to the failure to charge that portion of the request, so as to bring the matter sharply to the attention of the judge.
The judgment is affirmed on the first count, and reversed upon the confession of error on the second and third counts, and the plaintiffs are remanded to the District Court for resentencing on judgment of conviction on the first count.