Culjak v. United States, 6469.

• Citation: 53 F.2d 554,82 ALR 480
• Decision Date: 14 December 1931
• Docket Number: No. 6469.,6469.
• Parties: CULJAK v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

82 ALR 480, 53 F.2d 554 (1931)

CULJAK v. UNITED STATES.

No. 6469.

Circuit Court of Appeals, Ninth Circuit.

November 13, 1931.

Rehearing Denied December 14, 1931.

H. Sylvester Garvin, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., of Seattle, Wash., and Joseph A. Mallery, Asst. U. S. Atty., of Tacoma, Wash.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

JAMES, District Judge.

This appeal was taken from a judgment of imprisonment entered in the District Court against appellant upon his conviction by a jury on a charge that he had conducted and maintained a place which constituted a common nuisance under the provisions of the Federal Prohibition Act (title 2, § 21 27 USCA § 33).

The indictment as returned by the grand jury contained four counts, the first and third counts charged unlawful sales of intoxicating liquor as having been made by appellant. The second count charged one Nicholson with having made a sale of intoxicating liquor. The fourth count charged the appellant and Nicholson with having maintained a place for manufacturing, keeping, selling, and bartering intoxicating liquors. The United States Attorney conceded the objection of the defendants as to insufficiency in the charges contained in count 2 and count 3, and those counts were not brought before the jury sitting at the trial.

The appellant seasonably moved to quash the indictment, urging as ground that the joinder of the count of the indictment charging appellant singly with having made a sale of liquor with a count wherein he was charged jointly with Nicholson was improper, and would prejudice him in his right to a fair trial. Appellant was acquitted on the first count and convicted with his codefendant on the nuisance count. His codefendant is not a party to the appeal.

Subject to the qualifications hereinafter stated, a motion to quash on indictment for misjoinder, either of offenses or parties defendant, is addressed to the discretion of the court; the guiding rule in the disposal of such a motion being that the court shall consider whether some of the defendants may be prejudiced by having evidence applicable to other of the defendants so involve them as that it reacts to their prejudice with the jury; or that they may be injuriously affected in their right to peremptory challenges. Where any single count of an indictment against several persons is sufficient in form and substance to charge a public offense, the fact that there has been a misjoinder of either offenses or persons charged therein will not invalidate the indictment as a whole. The prosecutor may move to dismiss one or more counts of an indictment, and jeopardy will not attach as to the counts so disposed of. United States v. Rossi, 39 F.(2d) 432 (C. C. A. 9). Or the court may order separate trials of the defendants. Where an adverse ruling has been made on a motion to quash for misjoinder, the question will be as to whether such misjoinder, and trial under it, has operated to the prejudice of the defendant.

The case of McElroy v. United States, 164 U. S. 76, 17 S. Ct. 31, 41 L. Ed. 355, determined that different defendants might not be charged in the same indictment where they were all not included in each count thereof. The case of Pointer v. United States, 151 U. S. 396, 14 S. Ct. 410, 38 L. Ed. 208, did not involve the matter of defendants being differently charged, some in one count of the indictment and some in another. There a single defendant was charged in two separate counts with having committed two separate murders. The court held that, as the murders were committed at the same time, and as the evidence in proof of one would be necessarily involved in the proof of the other, the joining of the charges in the same indictment should be permitted. The court there, nevertheless, indicated that it was the duty of the trial judge, in such a case, to use his discretion with care to see that a defendant was not unduly embarrassed and injured in his defense, because of the joinder. This to the point that the matter of joining offenses was not one of clear right in the prosecuting officer, but one which was subject to regulation by the court.

We are cited to no decision which approves a practice of the joining in one indictment different defendants, some of whom are charged with one crime and some with another. The established rule is to the contrary. Counsel for appellant very properly argues that prejudice...