Opinion
No. 16474.
Argued October 5, 1967.
Decided October 24, 1967.
Edmund B. Clark, Dept. of Justice, Land and Natural Resources Division, Appellate Section, Washington, D.C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U.S. Atty., Lawrence G. Zurawsky, Asst. U.S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government's failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government's position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge's charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government's failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be affirmed.