Elroy v. United States
| Decision Date | 02 November 1896 |
| Docket Number | No. 402,402 |
| Citation | 41 L.Ed. 355,17 S.Ct. 31,164 U.S. 76 |
| Parties | McELROY et al. v. UNITED STATES |
| Court | U.S. Supreme Court |
Wm. M. Cravens, for plaintiffs in error.
Asst. Atty. Gen. Dickinson, for the United States.
George McElroy, John C. W. Bland, Henry Hook Charles Hook, Thomas Stufflebeam, and Joe Jennings were indicted in the circuit court for the Western district of Arkansas for assault with intent to kill Elizabeth Miller, April 16, 1894, the indictment being numbered 5332; also for assault with intent to kill Sherman Miller on the same day, the indictment being numbered 5333; also for arson of the dwelling house of one Eugene Miller, May 1, 1894, the indictment being numbered 5334. Three of these defendants, namely George McElroy, John C. W. Bland, and Henry Hook, were also indicted for the arson of the dwelling house of one Bruce Miller, April 16, 1894, the indictment being numbered 4843. It does not appear that Jennings was tried. The court ordered the four indictments consolidated for trial, to which each of the five defendants duly excepted. Trial was then had, and resulted in separate verdicts finding the defendants guilty, and, after the overruling of motions for new trial and in arrest, they were severally sentenced on each indictment to separate and successive terms in the peniteniary, and sued out this writ of error.
The consequence of this order of consolidation was that defendants Stufflebeam and Charles Hook were tried on three separate indictments against them and three other defendants, consolidated with another indictment against the other defendants for an offense with which the former were not charged, while an indictment for feloniously firing the dwelling house of one person on a certain day was tried with an indictment for arson committed a fortnight after in respect of the dwelling house of another person.
Section 1024 of the Revised Statutes is as follows: 'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.'
The order of consolidation under this statute put all the counts contained in the four indictments in the same category as if they were separate counts of one indictment, and we are met on the threshold with the inquiry whether counts against five defendants can be coupled with a count against part of them, or offenses charged to have been committed by all at one time can be joined with another and distinct offense committed by part of them at a different time.
The statute was much considered in Pointer v. U. S. 151 U. S. 396, 14 Sup. Ct. 410. In that case the defendant was charged in different counts with two murders alleged to have been committed on the same day, and in the same county and district, and moved to quash on that ground, which motion was denied. Before the case was opened to the jury for the government, the defendant moved that the district attorney be required to elect on which count of the indictment he would claim a conviction. The motion was overruled, and he was required to go to trial upon all the counts. Upon the conclusion of the evidence the defendant renewed the motion that the government be required to elect upon which count of the indictment it would prosecute him, but this motion was overruled. The jury found separate verdicts of guilty of each murder as charged in the appropriate count. This court, speaking through Mr. Justice Harlan, said: 'While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment and to be tried by one jury, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, in separate counts, of different felonies, at least of the same class or grade, and subject to the same punishment, is not necessarily fatal to the indictment upon demurrer or upon motion to quash or on motion in arrest of judgment, and does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial.' It was decided that it could not be held from anything on the face of the indictment that the trial court erred or abused its discretion in overruling the defendant's motion to quash the indictment, or his motions for an election by the government between the two charges of murder. The indictment showed that the two murders were...
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...of differences in the indictments there pointed out (164 U.S. at page 79, 17 Sup.Ct. 31, 41 L.Ed. 355) and ruled upon (164 U.S.at page 81, 17 Sup.Ct. 31, 41 L.Ed. 355); and features distinguishing that decision from the general rule received further attention in Williams v. United States, 1......
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...whether the harmless-error rule governs.6 Most Circuits that have adopted the per se approach have relied on McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896), where this Court applied the joinder statute then in force and reversed convictions of jointly tried defendan......
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