Dunaway v. United States, No. 11467

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtEDGERTON, Circuit , dissents
Citation92 US App. DC 299,205 F.2d 23
Docket Number11468.,No. 11467
Decision Date04 June 1953

92 US App. DC 299, 205 F.2d 23 (1953)


Nos. 11467, 11468.

United States Court of Appeals District of Columbia Circuit.

Argued March 27, 1953.

Decided June 4, 1953.

Mr. Herbert S. Marks, Washington, D. C., with whom Mr. Sidney S. Sachs, Washington, D. C. (both of whom were appointed by this Court) and Mr. Dexter M. Kohn, Washington, D. C., were on the brief, for appellant.

Mr. E. Riley Casey, Asst. U. S. Atty., with whom Messrs. Charles M. Irelan, U. S. Atty. at the time of argument, William S. McKinley, Asst. U. S. Atty., and William R. Glendon, Asst. U. S. Atty. at the time of argument, were on the brief, for appellee. Messrs. Leo A. Rover, U. S. Atty. and Joseph M. Howard, Asst. U. S. Atty. at the time the record was filed, also entered appearances for appellee.

205 F.2d 24

Before EDGERTON, CLARK, and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The appeal claims reversible error due to the consolidation in one trial of three separate indictments against one defendant, the appellant. Each indictment charged housebreaking on a different day and at a different place. Two of the indictments contained additional counts charging larceny at the place alleged in the related housebreaking count to have been entered. At the end of all the testimony the court directed acquittals on the larceny counts because of inadequate evidence. The jury acquitted defendant of one charge of housebreaking and convicted of the other two. For convenience we shall refer to this acquittal as the non-fingerprint case and to the other two, resulting in convictions, as the fingerprint cases. Differences in evidence make these descriptions appropriate.

The consolidation, made on motion of the Government when the cases were called for trial, was then objected to by accused as prejudicial in that the offenses were not alleged to have been committed on the same day.1 Being of the same or similar character their consolidation was nevertheless permissible under the literal language of Rule 13, Fed.R.Crim.P.,2 read with Rule 8(a), 18 U.S.C.A.3 Smith v. United States, 1950, 86 U.S.App.D.C. 195, 180 F.2d 775. But the requirements of Rule 14 must also be met; this Rule provides

"If it appears that a defendant * * * is prejudiced by * * * joinder for trial together, the court may order an election or separate trials of counts * * * or provide whatever other relief justice requires."4

Therefore, if because of the consolidation prejudice developed and was not cured by requiring an election or by other relief, material error afflicted the trial. Prejudice has consistently been held to occur when consolidation embarrasses or confounds an accused in making his defense. Pointer v. United States, 1894, 151 U.S. 396, 403, 14 S.Ct. 410, 38 L.Ed. 208; Kidwell v. United States, 1912, 38 App.D.C. 566, 570. See, also, McElroy v. United States, 1896, 164 U.S. 76, 78, 17 S.Ct. 31, 41 L.Ed. 355.5 Though more than one defendant was involved in the McElroy case the Supreme Court in considering the general subject said that where the accused is deprived of a substantial right the error is revisable, adding,

"* * * even if the defendants are the same in all the indictments consolidated, we do not think the statute Rev.Stat. § 1024 authorizes the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts.
"Under the third clause relating to several charges `for two or more acts or transactions of the same class of crimes or offenses,\' it is only when they `may be properly joined\' that the joinder
205 F.2d 25
is permitted, the statute thus leaving it for the court to determine whether in any given case a joinder of two or more offenses in one indictment against the same person `is consistent with the settled principles of criminal law,\' as stated in Pointer\'s case Pointer v. U. S., 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208." 164 U.S. at page 80, 17 S.Ct. at page 32.

On appellate review after trial the courts have hesitated to interfere with the discretion exercised by the trial court. Cataneo v. United States, 4 Cir., 1948, 167 F.2d 820, 823. But in the case cited the appellate court considered that there was but one "transaction" involved in the offenses tried together, unlike the situation before us. And see McNeil v. United States, 1936, 66 App.D.C. 199, 85 F.2d 698. In Rakes v. United States, 4 Cir., 1948, 169 F.2d 739 (opinion by Prettyman, J.), certiorari denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380, the several offenses were said to be based on transactions constituting parts of a common plan, also presenting a different situation. In United States v. Silverman, 3 Cir., 1939, 106 F.2d 750, 752, decided under Rev.Stat. § 1024, it was said,

"The prescription `which may properly be joined\' brings into action no rule of thumb, but rather the sound discretion of the trial court exercised to prevent undue prejudice to the accused";

but the court pointed out that appellant did not at any time feel sufficiently "confounded in his defense" to request the court to compel an election. In United States v. Perlstein, 3 Cir., 1941, 120 F.2d 276, 281, the rule is...

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