Castellini v. United States, No. 6278.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMOORMAN, HICKS, and SIMONS, Circuit
Citation64 F.2d 636
Docket NumberNo. 6278.
Decision Date14 April 1933
PartiesCASTELLINI v. UNITED STATES.

64 F.2d 636 (1933)

CASTELLINI
v.
UNITED STATES.

No. 6278.

Circuit Court of Appeals, Sixth Circuit.

April 14, 1933.


Coleman Avery and Edward T. Dixon, both of Cincinnati, Ohio, for appellant.

Harry A. Abrams, of Cincinnati, Ohio (Haveth E. Mau, of Cincinnati, Ohio, on the brief), for appellee.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

HICKS, Circuit Judge.

Appellant was president and director of the Brotherhood of Railway Clerks National Bank of Cincinnati, Ohio. Lyman E. Norris was its executive vice president, and Harry Rosenblum its cashier. The government preferred an indictment, No. 3983, containing twenty-seven counts, against appellant, Norris, and Rosenblum. The first twenty-six counts charged that they on different dates made and caused to be made false entries in the books of the bank. The twenty-seventh count charged the making of a false report to the Comptroller of the Currency. Upon the trial, the fourth and twenty-seventh counts were dismissed. In a separate indictment, No. 3987, containing two counts, appellant and Norris were charged with having, on different dates, misapplied funds of the bank.

Norris and Rosenblum entered a plea of guilty to certain counts of indictment No. 3983. On October 16, 1930, appellant entered a plea of not guilty to both indictments. The cases came on for trial against appellant alone on March 9, 1931, at which time the government moved to consolidate the two indictments, which motion was sustained. Thereupon appellant moved to require the government to elect upon which indictment it would seek a conviction. This motion was overruled. Appellant was acquitted upon indictment No. 3983 and upon the second count of indictment No. 3987. He was, however, convicted upon the first count of indictment No. 3987.

Error is assigned upon the order consolidating the indictments and upon the refusal to require an election. We think that the indictments should not have been consolidated, and we are of the opinion further that, having ordered the consolidation, the court should have required an election. The statutory authority for consolidating indictments is found in title 18, § 557, U. S. C. (18 USCA § 557), R. S. § 1024, printed in the margin.1

64 F.2d 637
This section originated with the Act of Feb. 26, 1853 (10 Stat. 161), to regulate fees and costs, and, after the word "person" found therein, there appeared the words "or persons." When the act was carried into the Revised Statutes at section 1024, the words "or persons" were eliminated. This would indicate that R. S. § 1024, applied to cases where one person only was a defendant in each indictment, but by construction this section has been extended to indictments where two or more defendants were the same in each indictment or in all. Emanuel v. U. S., 196 F. 317, 320 (C. C. A. 2); Davis v. U. S., 12 F.(2d) 253, 256 (C. C. A. 5)

But that is not this case. The defendants were not the same in each indictment. Rosenblum was a defendant in No. 3983 only. It is not controlling that appellant was placed upon trial alone, for the test by which consolidation should be determined is, not who was to be tried, but what appeared upon the face of the indictments? In De Luca v. U. S., 299 F. 741, 744 (C. C. A. 2), it was said: "The statute makes the test what appears on the face of the bills themselves. It does not depend in any degree upon the order in which the prosecutor intends to bring the defendants to trial."

The various counts of indictment No. 3983, except count 22, charged, in substance, that appellant, jointly with Norris and Rosenblum, at different times and on different occasions, made or caused to be made, entries upon the bond and securities ledger of the bank, each of which entries reflected a...

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11 practice notes
  • United States v. Weber, No. 18251.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 Diciembre 1970
    ...the District Court abused its discretion. The consolidated indictment contained only eight counts, unlike Castellini v. United States, 64 F.2d 636 (6th Cir. 1933), a case cited by Weber, in which 26 counts were charged. Furthermore, here none of the counts charged Weber with crimes apt to a......
  • United States v. Hoffa, No. 15876-15879.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 29 Julio 1965
    ...opinion, came clearly within the provisions of Rule 8(a). United States v. Koury, 319 F.2d 75 (C.A. 6, 1963). Castellini v. United States, 64 F.2d 636 (C.A. 6, 1933), relied on by Appellants, is not in point. It was decided prior to the adoption of the Federal Rules of Criminal Procedure an......
  • Cross v. United States, No. 17596-17597.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 26 Marzo 1964
    ...We were willing to assume for this purpose that the two guilty verdicts could be considered as one. We cited Castellini v. United States, 64 F.2d 636 (6th Cir. 1933), which held: "Nor will it suffice to say that appellant's acquittal upon the counts for making false entries cured the d......
  • Ross v. United States, No. 11429.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 29 Mayo 1952
    ...The motion for election or severance was said to be supported by the opinion of this court in Castellini v. United States, 6 Cir., 64 F.2d 636, and by the opinion of the Supreme Court in McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. The motion was denied by the District Judge......
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11 cases
  • United States v. Weber, No. 18251.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 Diciembre 1970
    ...the District Court abused its discretion. The consolidated indictment contained only eight counts, unlike Castellini v. United States, 64 F.2d 636 (6th Cir. 1933), a case cited by Weber, in which 26 counts were charged. Furthermore, here none of the counts charged Weber with crimes apt to a......
  • United States v. Hoffa, No. 15876-15879.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 29 Julio 1965
    ...opinion, came clearly within the provisions of Rule 8(a). United States v. Koury, 319 F.2d 75 (C.A. 6, 1963). Castellini v. United States, 64 F.2d 636 (C.A. 6, 1933), relied on by Appellants, is not in point. It was decided prior to the adoption of the Federal Rules of Criminal Procedure an......
  • Cross v. United States, No. 17596-17597.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 26 Marzo 1964
    ...We were willing to assume for this purpose that the two guilty verdicts could be considered as one. We cited Castellini v. United States, 64 F.2d 636 (6th Cir. 1933), which held: "Nor will it suffice to say that appellant's acquittal upon the counts for making false entries cured the d......
  • Ross v. United States, No. 11429.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 29 Mayo 1952
    ...The motion for election or severance was said to be supported by the opinion of this court in Castellini v. United States, 6 Cir., 64 F.2d 636, and by the opinion of the Supreme Court in McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. The motion was denied by the District Judge......
  • Request a trial to view additional results

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