Coco v. United States, 5839.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 289 F. 33
• Docket Number: 5839.
• Parties: COCO et al. v. UNITED STATES.
• Decision Date: 23 April 1923

289 F. 33

COCO et al.
v.
UNITED STATES.

No. 5839.

United States Court of Appeals, Eighth Circuit.

April 23, 1923

Willis H. Clark, P. H. Cullen, and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, Mo., for plaintiffs in error.

Vance J. Higgs, Sp. Asst. Atty. Gen., for the United States.

Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge.

Plaintiffs in error, who will be hereafter referred to as defendants, in November, 1919, were residing on Wilson avenue in the city of St. Louis. Defendants Puglisi, Grasso, and Coco lived at No. 5033, and Cantigli at No. 5035.

The defendants were jointly indicted under sections 3258 and 3282 of the Revised Statutes (Comp. St. Secs. 5994, 6022). The indictment contains five counts. The first and second are identical in language, and charge that on or about the 8th day of November, A.D. 1919, at No. 5035 Wilson avenue, in the city of St. Louis, etc., the defendants 'unlawfully and feloniously did have in their possession a certain still set up, without having registered the same with the collector of internal revenue,' etc. The third count is in identical language except No. 5033 is alleged, instead of No. 5035. The fourth count charged that on or about the 8th day of November, A.D. 1919, at No. 5033 Wilson avenue, in the city of St. Louis, etc., the defendants 'unlawfully and feloniously did make a certain mash, consisting of thirteen barrels, more or less, of dried raisins and water, and which said mash was then and there fit for distillation and production of spirits to wit, brandy,' etc. The fifth count is the same as the fourth count, except No. 5035 is alleged, instead of No. 5033, and nine barrels instead of thirteen barrels.

At the opening of the trial defendants Puglisi and Grasso moved the court for a severance, alleging in substance that the evidence to be produced by the government would wholly fail to connect them with the offenses alleged in the first, second, and fifth counts of the indictment. The motion was overruled by the trial court, although the facts set up in the motion and affidavit were not in any way denied by the government. At the conclusion of the trial the defendant Cantigli was acquitted by direction of the court upon counts 2, 3, and 4, and convicted upon counts 1 and 5. The defendants Puglisi, Grasso [289 F. 34] and Coco were convicted upon counts 3 and 4, and acquitted by direction of the court upon counts 1, 2, and 5.

There was no evidence in the record connecting or tending to connect any one of the defendants, Puglisi, Grasso, and Coco, residing at No. 5033, with the offenses alleged in the indictment to have been committed at No. 5035, and there was no evidence in the record connecting or tending to connect the defendant Cantigli, residing at No. 5035, with the offenses alleged in the indictment to have been committed at No. 5033. The outcome of the trial was that, upon a joint indictment, the defendant Cantigli was convicted of distinct and separate offenses committed at No. 5035, and the defendants Puglisi, Grasso, and Coco were convicted of distinct and separate offenses committed at No. 5033.

Counsel for defendants contend that the refusal of the trial court to grant separate trials to the two groups of defendants was such an abuse of discretion as to require the reversal of the judgment, and cite cases appropriate to and supporting their contention. Counsel for the government reply with counter arguments and opposing authorities. There is apparent upon the face of the record another question of more importance to be considered and disposed of. That question is: What disposition should be made of a case where, under a joint indictment, different defendants have been convicted of distinct and separate offenses?

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