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be joined with counts for the subornation of perjury, therewith connected.30 A count for making, presenting or causing to be made or presented, a false claim with another, of causing to be furnished a false affidavit in support of the same claim,31 that defendant received money "under a threat of informing and as a consideration for not informing," against a violation of the Internal Reveue law.82

That defendant, on or about a certain date, and at other times before, did sell, "to John Doe and Richard Roe, and to divers other persons," whose real names are unknown, "an intoxicating liquor called whiskey, to-wit, one glass, pint, quart, gallon of said liquor (the real quantity is to the grand jurors unknown)." 33 Charges of hindering voters at an election and of conspiracy to hinder them at the same election.34 It has been held that an indictment for a conspiracy to injure and intimidate the United States marshal and his posse, and to deprive them of their constitutional right to arrest the defendant upon legal process, which avers that the result of the conspiracy was the killing of a deputy marshal, is not objectionable as charging the defendant with both conspiracy and murder.35

By the Act of Oct. 28, 1919, providing for the enforcement of prohibition: "In any affidavit, information, or indictment for the violation of this Act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed. It shall not be necessary in any affidavit, information, or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so." 36 The joinder of offenses under the national banking laws is subsequently discussed.37

30 U. S. v. Bickford, 4 Blatchf. 337, infra, § 503.

31 Ingraham v. U. S., 155 U. S. 434, 39 L. ed. 213.

32 U. S. v. Fero, 18 Fed. 901.

33 Endleman v. U. S., C. C. A., 86

Fed. 456, 30 C. C. A. 186.

34 U. S. v. Belvin, 46 Fed. 381. 35 U. S. v. Davis, 103 Fed. 457. 36 Ch. - Title II, § 32, Comp. St., 101382s, infra, § 506.

37 Infra, § 506.

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Congress has repealed the former provision in the Revised. Statutes 38 limiting to three the number of offenses committed within the same six months which should be punished upon conviction under an indictment, information, or complaint, because of mailing letters in aid of a scheme to defraud.39

§ 502. Misjoinder of counts. It has been held that the following counts cannot be joined in an indictment: a count for conspiracy with a count for murder. A count for subornation of perjury with a count alleging the transmission of false papers to the pension office.2 Four separate offenses: That the defendant carried on the business of retailing liquor without posting in his place the stamp denoting the payment of the special tax required by law; that he carried on the said business without having paid the special tax required by law; that he carried on the business of dealing in manufactured tobacco without posting in the place the stamp denoting the payment of the special tax required by law; that he carried on the said business without having paid the special tax required by law; the first and third offenses being misdemeanors punishable by a fine under one section of the Revised Statutes; the fourth a misdemeanor punishable by a fine under another section; and the second a felony punishable by a fine and imprisonment under the section last cited.5

It has been held to be improper, to join in the same indictment a charge of a conspiracy, on the part of the officers of the Government, under one section of the Revised Statutes, with a charge of a conspiracy against private citizens under another section, there being a difference in the punishment provided for in each section.8

38 U. S. R. S., § 5480; Ch. 321, 35 St. at L. 1130, Comp. St., $10385; Re Snow, 120 U. S. 274, 30 L. ed. 658; Re De Bara, 179 U. S. 316, 45 L. ed. 207; Hall v. U. S., C. C. A., 152 Fed. 420; Etheredge v. U. S., C. C. A., 186 Fed. 434; Stern v. U. S., C. C. A., 223 Fed. 762; U. S. v. Nye, 4 Fed. 888; U. S. v. McVickar, 164 Fed. 894.

39 Criminal Code, § 215, 35 St.

at L. 130, Ch. 321, Comp. St., § 10385.

§ 502. 1 U. S. v. Scott, C. C. A., 165 Fed. 172; S. C., 139 Fed. 697. 2 U. S. v. Bickford, 4 Blatchf. 337.

3 U. S. R. S., § 3239.
4 U. S. R. S., § 3242.

5 U. S. v. Gaston, 28 Fed. 848.

6 U. S. R. S., § 3169.

7 U. S. R. S., § 5440.

8 U. S. v. McDonald, 3 Dillon,

Counts which allege offenses, of which but one person can be guilty, cannot be joined with others alleging that several persons committed an offense, which is in its nature several.9

The proper remedy for a misjoinder of counts is a motion to compel an election between them.10 The objection cannot be raised by a motion in arrest of judgment.11

§ 503. Election between counts in an indictment. In all cases where the counts are of such a character or so numerous, that the offer of proof, or the submission of the issues to the jury, on each, might lead to confusion, or unduly embarrass the accused in his defense; the trial court has discretionary power to require the prosecution, either before any proof is offered, or after the proof on behalf of the Government has closed, to elect the counts upon which it will ask for a conviction. This will rarely be done where the different counts are charged to be part of the same conspiracy.2

The denial of a motion to compel an election may be reviewed by writ of error.3 Where the sentence did not exceed that which might have been imposed for a conviction upon a single count, it was held that the error was not prejudicial.

§ 504. Joinder of defendants to indictment. Two or more may be jointly indicted for offenses arising wholly out of the same joint act or omission.1 An indictment will lie against a corporation and its agents.2 An indictment charging one person with the direct commission of the criminal act, and others

543 Fed. Cas. No. 15,670; distinguished, U. S. v. Van Leuven, 62 Fed. 62.

9 U. S. v. Kazinski, 2 Sprague, 7, 26 Fed. Cas. No. 15,508.

10 Phillips v. U. S., C. C. A., 264 Fed. 657; infra, § 503.

11 Ibid.

§ 503. 1 Gardes v. U. S., C. C. A., 87 Fed. 172, 175, 176. See Pointer v. U. S., 151 U. S. 396.

2 Wallace v. U. S., C. C. A., 243 Fed. 300.

3 Gardes v. U. S., C. C. A., 87 Fed. 172, 175, 176. Contra, Corbin v. U.

S., C. C. A., 264 Fed. 659. See Sidebotham v. U. S., C. C. A., 253 Fed. 417.

4 Wetzel v. U. S., C. C. A., 233 Fed. 984; Nudelman v. U. S., C. C. A., 264 Fed. 942; Sidebotham v. U. S., C. C. A., 254 Fed. 417.

§ 504. 1 U. S. v. McGinnis, Abh. U. S. 120, 26 Fed. Cas. No. 15,678; Volmer v. State, 34 Ark. 487; Commonwealth v. Miller, 2 Pars. Eq. Cas. (Pa.) 480; 22 Cyc. 373.

2 N. Y. C. & H. R. R. Co. v. U. S., 212 U. S. 481, 53 L. ed. 613, affirming 146 Fed. 298.

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with aiding, abetting, counseling, commanding and inducing it, charges but one offense against all, as all are principals.3

Defendants cannot be jointly indicted for crimes committed at the same time, when they did not jointly act.1

It has been said that, to authorize a joint indictment, the duty imposed upon the defendants and violated by them must be a joint duty. It has been held; that persons may be jointly indicted for signing, in their partnership name, a false return to an assessor of Internal Revenue. It is improper to charge two persons in the same indictment, and in a single count, one with agreeing to receive a bribe as a member of Congress, and the other with agreeing to give such bride.7 A judge and a clerk of an election cannot be jointly indicted for failing to sign and attest a poll ticket and to set down, at the foot thereof, the total number of persons marked "voted."8

§ 505. Consolidation of indictments. Where two or more indictments are found, which contain charges, all of which might have been joined in a single indictment in separate counts, the court may order them to be consolidated.1 It has been said that the trial court has a sound discretion in deciding whether a fair and impartial trial would be prevented by a joinder, notwithstanding such joinder would be permitted by the general language of the section.2

"There are often circumstances which would render a uniting of several offenses unjust to a defendant, and as the old cases put it 'confound him in the making of his defense.' Whenever such a situation arises, the trial court will protect the defendant's right to a fair trial."3

"It is clear that the statute does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged

3 Ruthenberg v. U. S., 245 U. S. 480; U. S. v. Rogers, 226 Fed. 512. 4 U. S. v. Kazinski, 2 Sprague, 7, 26 Fed. Cas. No. 15,508.

5 U. S. v. Davis, 33 Fed. 621.

6 U. S. v. McGinnis, 1 Abb. U. S.

120, 26 Fed. Cas. No. 15,678.

7 U. S. v. Dietrich, 126 Fed. 664. 8 U. S. v. Davis, 33 Fed. 621.

§ 505. 1 U. S. R. S., § 1024; quoted 501, supra. For a discus. sion of the consolidation of civil actions, see supra, § 472.

2 Dolan v. U. S., C. C. A., 133 Fed. 440, 446, 69 C. C. A., 274.

3 Dolan v. U. S., C. C. A., 133 Fed. 440, 446, 69 C. C. A., 274.

with a crime different from that for which all are tried. And even if the defendants are the same in all the indictments consolidated, we do not think the statute authorizes the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts."4

It was held to be improper to consolidate four indictments, two of which charged all of five defendants with assault with intent to kill two different persons on the same day; a third, all of them with arson of a dwelling house two weeks later; and a fourth, three only of them with arson of another dwelling house on the day of the assaults.5

Indictments may be consolidated in cases where the charges could not be joined at common law.6 The consolidation of several indictments is proper where all the counts in all of them could have been included, in the first instance, in one indictment. It has been held proper to consolidate: different charges of extortion by an officer under color of his office. Indictments against the same persons for assaults, with intent to kill different persons, upon the same day, and a third indictment for arson of a dwelling house of a third man upon a different day about two weeks later.9 Indictments against the same person for conspiracy to defraud the United States by means of illegal entries of adjacent public lands by different persons.10 Indictments charging the same defendants with aiding and abetting different persons in the use of false certificates of citizenship at the same election.11 Indictments for a conspiracy in restraint of trade with foreign nations and for conspiracy to prepare a military expedition against the dominions of foreign provinces, States and people.12 Indictments for concealing smoking opium illegally imported and for illegally manufacturing smoking opium.13 In

4 Brimie v. U. S., C. C. A., 200 Fed. 726, 729. See Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. ed. 208.

5 McElroy v. U. S., 164 U. S. 76. 6 Dolan v. U. S., C. C. A., 133

Fed. 440, 69 C. C. A. 274.

7 Turner v. U. S., C. C. A., 66 Fed. 280.

8 Williams v. U. S., 168 U. S. 382 (the indictments being under U.

S. R. S., § 5481). See, also, U. S. v. Folsom, 7 New Mexico, 532.

9 McElroy v. U. S., 164 U. S. 76, 41 L. ed. 355.

10 Olson v. U. S., C. C. A., 133 Fed. 849, 67 C. C. A. 21.

11 Dolan v. U. S., C. C. A., 133 Fed. 440, 69 C. C. A., 274.

12 U. S. v. Bopp, 237 Fed. 283. 13 Charley Tay v. U. S., C. C. A., 266 Fed. 326.

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