(after stating the facts as above). The defendant below did not testify, and the evidence against him was direct, positive, abundant, and credible. He did offer two "character witnesses,” of whom one testified in substance that defendant’s reputation for honesty was good “with us” — apparently meaning himself and others connected with his corporation. The other testified in common form that he knew Kalmanson, knew other people that knew him, and that his reputation for honesty was good. The court charged with great emphasis on the necessity of the offense being proven beyond a reasonable doubt, and then said:
“You have a right to consider the good character of the defendant, if you find it is good, in making up your mind about the guilt or innocence of the defendant. * * * The court charges you that if you do find the defendant has a good character, you have a right to consider that fact as a circumstance in this ease, as to whether a man of good character would commit this kind— or any offense.”
At the close of the colloquial charge the court was requested “to charge that the evidence of good character may in and of itself be sufficient to create a reasonable doubt where without it none would exist.” This the court declined, saying:
“I cannot charge that; if they do find that the defendant has a good char-' acter, they may consider that a circumstance in the case the same as in any other case.”
The requested words were almost a quotation from Edgington v. United States, 164 U. S. 361, 366, 17 Sup. Ct. 72, 41 L. Ed. 467, and therefore sound law.
The sum of argument at this bar is that a refusal by the trial v judge to charge sound law must constitute reversible error. This is not always true. Even in a criminal case error requiring reversal must be substantial; prejudice will not be presumed when it is “impossible to see that it could possibly have wronged the party who complains of it.” Per Rogers, J., in Linn v. United States, 251 Fed. 476, 483, 163 C. C. A. 470, 477.
Nor is it enough to complain of refusal to charge in words selected, by counsel. Taking the whole proceedings together, the fundamental inquiry is:
“Was the law applicable to the controversy fairly presented to the jury? If so, neither party has a right to complain because the trial judge preferred his own language to that of counsel.” Green v. United States, 240 Fed. 949, 951, 153 C. C. A. 635, 637.
What the court did say was all that the defendant under the circumstances had a right to insist upon. Upon what insistence may fairly be placed varies with cases. Snitkin v. United States (C. C. *73A.) 265 Fed. 489, much relied upon by the plaintiff in error, is a good example. In that case there was a serious contest between the stories told on the witness stand by the then defendant and a witness, and the court naturally held that, “in view of the contest * * * over the juror’s acceptance of one or the other of their conflicting stories, the error was prejudicial”; i. e., the error of refusing specifically to charge that Snitkm’s reputation alone might create a reasonable doubt of guilt.
In Rosen’s Case (C. C. A.) 271 Fed. 651, 657, the trial court had fallen into the mistake of specifically stating that, “if there is a doubt in your mind” as to the credibility of certain witnesses, then “you may have recourse to the testimony regarding their good reputation.” But there was added to this error the lukewarm statement:
“Indeed, the courts say that a man’s good reputation in a case like this may often of itself create a reasonable doubt.”
But, under the circumstances disclosed by that record, this court was of opinion that the “jury could not have been misled * * * [nor] the accused prejudiced by the instructions.” Neither in Edgington’s Case, supra, nor in that of Oppenheim, 241 Fed. 625, 154 C. C. A. 383, nor in any other case, has it ever been held, as incumbent upon the trial court, no matter what the testimony before court and jury, to use the formula requested by counsel for defendant below.
Having regard to this record and to the extremely colorless and insufficient nature of the character evidence, we think that had the formula been repeated, and had been uttered (as rquested) at the close of the court’s colloquial charge, it would have been calculated to mislead the jury into thinking that the court meant to say that any evidence of good character might be a complete defense to an amply proven charge of crime.
This plaintiff in error was given an instruction that the evidence concerning his character should be considered with and as a part of all the evidence, and that upon it all they must find the man guilty, if at all, beyond every reasonable doubt. This case (on the point in issue) is substantially identical with that of Warren v. United States, 250 Fed. 89, 162 C. C. A. 261; with the ruling there made we agree.
Being of opinion that this plaintiff in error had a fair trial, and that no reversible error was committed, judgment is affirmed.