Dolan

For the former opinion in this case see Dolan v. United States, 116 F. 578 , 54 C.C.A. 34 . The court granted a rehearing herein in order that the whole case might be again reviewed. One of the instructions is deserving of a careful consideration. It reads as follows: “If from the evidence you find that, at the time Wilson Misc.er made the statement as testified to by Palmer, the defendant Dolan was already in collusion and conspiracy with the defendants Allen and Hawkins, or, as a result of the communication of the statement made by Misener, Dolan joined Allen and Hawkins soon following such statement, and that when said Wilson Misc.er used the pronoun ‘he’ in the conversation testified to by Palmer he meant and was understood to mean R. J. Embleton, it is' a circumstance you may consider.”

In considering this instruction, it must be remembered that the plaintiff in error was jointly indicted with George Allen and George Hawkins for the crime of robbery against the person of one R. J. Embleton; that they were each tried separately and convicted. The record shows that the testimony of Palmer was to the effect that he overheard a conversation in the Grotto Saloon, in Nome, between…