Dillard v. United States

• Decision Date: 23 October 1905
• Docket Number: 1,182.
• Parties: DILLARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

141 F. 303

DILLARD v. UNITED STATES.

No. 1,182.

United States Court of Appeals, Ninth Circuit.

October 23, 1905

Samuel M. Shortridge and T. C. West, for plaintiff in error.

Robert T. Devlin, U.S. Atty., and Benjamin L. McKinley, Asst. U.S Atty.

The plaintiff in error was charged with forging duplicate certificates of residence issued by the government of the United States, through a collector of internal revenue, to Chinese laborers entitled to be and remain in the United States, in place of original certificates lost or destroyed. Counts 1 to 5, inclusive, of the indictment, charge the forging of five of such official documents on five specified dates. Counts 6 to 10, inclusive, charge the uttering of the said five documents on the dates on which they were alleged to have been forged. Counts 11 to 15, inclusive, charge the plaintiff in error, as an officer of the United States, with negligently and designedly permitting five acts of violation of the law on said dates, against the provisions of section 3169 of the Revised Statutes. Counts 16 to 24, inclusive charge the uttering of nine other forged and fraudulent duplicate certificates on nine specified dates. Counts 25 to 33, inclusive, charge nine offenses against section 3169 Rev. St. (U.S. Comp. St. 1901, p. 2059), in permitting these nine violations of the law on the dates on which the said nine documents were uttered. Plaintiff in error moved to quash the indictment, on the ground of misjoinder of counts. At the same time he demurred to the indictment, on the ground that none of the acts charged were offenses against the United States, and upon other grounds, including that of misjoinder. The motion to quash was overruled by the court. The demurrer was sustained as to counts 11 to 15, inclusive and counts 25 to 33, inclusive. The plaintiff in error was convicted on counts 10, 17, 19, and 21, and was acquitted on the other counts which remained in the indictment.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

It is assigned as error that the court overruled the motion to quash the indictment. Section 1024, Rev. St. (U.S. Comp. St. 1901, p. 720), defines the circumstances under which counts may be joined in one indictment. It is:

'Where there are several charges against any person for the same act or transaction, or for two or more acts of 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.'

The plaintiff in error, having submitted with his motion to quash his demurrer to the indictment for misjoinder, which demurrer was sustained as to certain counts, cannot now be heard to complain that the indictment was not quashed, upon the ground that those charges were originally included in it. There can be no doubt that the five counts charging forgery or Chinese duplicate certificates may be properly joined with the five counts charging their utterance. Nor is there ground for saying that the five counts charging plaintiff in error with committing the five acts of violation of the law on the same dates may not be joined with them. They are all 'acts or transactions connected together' and are 'acts of the same class of crimes or offenses. ' The trial court had the power to exercise its discretion concerning the motion to quash, or to require the prosecutor to elect as to which of the charges the defendant should be tried upon. Its ruling on a motion to quash is ordinarily not assignable for error. Durland v. United States, 161 U.S. 306, 314, 16 Sup.Ct. 508, 40 L.Ed. 709; Logan v. United States, 144 U.S. 263, 282, 12 Sup.Ct. 617, 36 L.Ed. 429; United States v. Rosenberg, 7 Wall. 580, 19 L.Ed. 263.

As to the ruling of the court upon the demurrer on the ground of misjoinder, it is sufficient to point out that the indictment charges cognate crimes, and presents parts and phases of the same transactions. It is no objection to the joinder of charges in one indictment that the charges set forth offenses of different grades, and are framed under different sections of the statutes, and are attended with different penalties and different procedure. Logan v. United States, 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429; Dolan v. United States (C.C.A.) 133 F. 440, 446; McGregor v. United States (C.C.A.) 134 F. 187.

It is urged that the demurrers to all the counts in the indictment should have been sustained, for the reason that they do not specify to whom the duplicate certificates were issued, or wherein the certificates were false and fraudulent, nor allege that original certificates of residence had been issued, in lieu of which the duplicates were issued, nor that the originals had been proven to be lost. The counts in each case charged that at the time and place specified the plaintiff in error did 'unlawfully, wrongfully, knowingly, designedly, feloniously, and corruptly, and with intent to defraud, * * * utter, publish, and pass as true and genuine, to some person or persons to the grand jurors aforesaid unknown,' and then described the instrument, and proceeded:

'And which said false and fraudulent duplicate certificate of residence was numbered (giving the number), and which said false and fraudulent duplicate certificate of residence then and there purported to have been issued by said John C. Lynch, as collector of internal revenue of the United States, in and for the First district of California, to one (naming the Chinaman), who was therein described as a Chinese laborer; and which said false and fraudulent duplicate certificate of residence, then and there purported to have been issued in lieu of original certificate of residence numbered (stating the number), on proof of loss of said original certificate of residence being filed with the collector of internal revenue of the United States in and for the First district of California.'

Then followed a description of the certificate, in words and figures.

In order to charge the offense defined by the statute, it was not necessary to charge that there had been in fact an original certificate issued to the Chinese person named in the fraudulent duplicate, nor to allege that such original had been proven to be lost. The evil intended to be prevented by the statute might be accomplished as well where there had been no loss or proof of loss of an original certificate. Nor was it essential that the grand jury should have known to whom the plaintiff in error delivered the false certificate. It was sufficient to say that the actual delivery was to persons unknown to the grand jury (Durland v. United States, 161 U.S. 314, 16 Sup.Ct. 508, 40 L.Ed. 709), coupled with the averment that it purported to have been issued to a certain Chinese person named therein. We find no error in the ruling of the court on the demurrer.

The point is made that the trial court denied the plaintiff in error an opportunity to submit, at the close of the testimony for the government, his motion to dismiss as to certain counts. The record shows that, when the prosecution rested, counsel for the plaintiff in error announced their desire to make a motion to dismiss as to certain counts, but stated that at that time they were not ready to present the motion, for the reason that they were not able to segregate the vast number of exhibits introduced in evidence. They then proceeded to submit testimony for the defense. A day later they asked leave to make the motion. The court ruled that the motion should be made at the conclusion of the testimony, and remarked:

'If there is any matter as to which you think there is no evidence at all in you need introduce no evidence in regard to it.'

At the conclusion of the testimony the motion was made to dismiss as to all the counts, on the ground that there was no evidence in the record to show that the certificates contemplated by Exclusion Act May 5, 1892, c. 60, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1319), had ever been issued by the plaintiff in error. This motion was overruled. We discern no ground for saying that the court erred in denying permission to present the motion at the time when the offer was made. At that time a considerable portion of the evidence for the defense had been taken. It is argued that the refusal of the court to entertain the motion when it was first proposed to be made forced the plaintiff in error to go into his defense as to all the counts and permitted the defendant in error in rebuttal to fortify its case. It is a sufficient answer to this to say that the trial court was vested with discretion as to the order of proof and the conduct of the trial, and no prejudice to the plaintiff in error can be seen to have resulted from the refusal to entertain the motion at the time when it was first proposed.

The plaintiff in error presents numerous assignments of error as to portions of the charge to the jury and the refusal of the court to give certain requested instructions. We are without power to enter into a consideration of these questions, for the reason that the record shows that no exception whatever was taken either to the charge given or to the refusal of the court to give the requested instructions.

It is said that the court erred in admitting in evidence certain testimony of the witness Sam Bat Sam. He testified that he first came to the United States by way of Mexico; that at Deming he had three photographs taken and gave them to a white man, and a month later received from Toy Man Sing, of San Francisco, a duplicate certificate of residence, and he identified that certificate as the one which was presented to him by the district attorney. To the question whether Toy Man Sing sent him a...