(dissenting). The charge of the trial court was that under the evidence in the case it was not important whether the land from which the timber was taken was mineral or nonmineral. This charge was right, unless the defendant had produced some evidence not only that the land was mineral, but also (1) that those who cut from it were citizens of the United States, or bona fide residents of the state of Colorado; (2) that the land was not subject to entry under existing laws of the United States; (3) that the timber was cut for building, agricultural, rhining, or other domestic purposes; and (4) that this cutting was done in accordance with the rules and regulations prescribed by the secretary of the interior. Before it became material, under the evidence, whether the land was mineral or nonmineral, there must have been some testimony or evidence produced in support of each of these propositions. If there was no evidence in support of any one of them, then the defendant had not sustained his defense under the act of June 3, 1878, and the charge of the court was correct. The burden was on the defendant to produce this evidence. U. S. v. Cook, 19 Wall. 591, 22 L. Ed. 210; Railroad Co. v. Lewis, 162 U. S. 366, 376, 377, 16 Sup. Ct. 831, 40 L. Ed. 1002; Gentry v. U. S., 41 C. C. A. 185, 101 Fed. 51, 53.
The plaintiff in error alleges in this court that the charge of the court below that it was immaterial, under the evidence, whether the land was mineral or nonmineral, was erroneous. The burden is on him to show that it was erroneous. The record which he presents to this court discloses no evidence whatever that he or the other parties who cut and removed the timber in controversy ever complied with the rules and regulations prescribed by the secretary of the interior under the act of June 3, 1878, or that the land was not subject to entry under laws existing when that act was passed; and there are other propositions essential to the maintenance of his defense, in support of which no substantial evidence can be found in this record. One who would successfully attack the charge of a court because there was evidence in the case which rendered it erroneous must produce that evidence in the appellate court, or the charge below must be sustained. The presumption is that the trial court correctly instructed the jury, and that the same absence of evidence to sustain the propositions essential to the defense of the plaintiff in error existed in the court below which is disclosed by the record which the plaintiff in error now presents. As the plaintiff in error has not shown by the record that the charge was wrong, or that it was material under the evidence whether the lands were mineral or non-mineral, the charge should be sustained, and the judgment below should be affirmed. U. S. v. Patrick, 73 Fed. 800, 806, 20 C. C. A. 11, 17, 36 U. S. App. 645, 656; Railway Co. v. Price, 97 Fed. 423, 434, *99338 C. C. A. 239, 250; Taylor-Craig Corp. v. Hage, 69 Fed. 581, 583, 16 C. C. A. 339, 340, 32 U. S. App. 548, 552; Board v. Sutliff, 97 Fed.. 270, 275, 38 C. C. A. 167, 172; Newman v. Iron Co., 25 C. C. A. 382, 80 Fed. 228; Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644.