Egan v. United States

• Decision Date: 06 April 1925
• Docket Number: No. 4239.,4239.
• Parties: EGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 306, 5 F.2d 267 (1925)

EGAN v. UNITED STATES.

No. 4239.

Court of Appeals of District of Columbia.

Submitted March 3, 1925.

Decided April 6, 1925.

T. M. Wampler, of Washington, D. C., for appellant.

Peyton Gordon and J. H. Burnett, both of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.

ROBB, Associate Justice.

This is an appeal from a judgment of conviction in the Supreme Court of the District of Columbia under an indictment charging the defendant, appellant here, with a violation of sections 113 and 117 of the Penal Code of the United States (35 Stat. 1088, 1109 Comp. St. §§ 10283, 10287). This is the second trial under the same indictment, a former conviction having been set aside by this court. See Egan v. United States, 52 App. D. C. 384, 287 F. 958.

The first question presented by this appeal is based upon the contention that two distinct and inconsistent offenses were charged in the indictment and that the trial court erred in accepting a general verdict of guilty. In our prior opinion it was ruled that, since the crimes defined in the two sections belonged to the same class and might be separately charged in a single indictment, a general verdict of guilty on all counts would be sustained if any count was good and sufficient to support the judgment. The question was there raised by motion to require the district attorney to elect upon which counts of the indictment he would go to trial.

We said:

"This motion was based upon the theory that the indictment included two separate offenses under the Penal Code. This is permissible, and election will not be required, where the offenses charged are not distinct and inconsistent. The crimes defined in sections 113 and 117 belong to the same class, and may be separately charged in a single indictment. In such a case a general verdict of guilty on all the counts will be sustained in error, if any count is good and sufficient to support the judgment. Claassen v. United States, 142 U. S. 140, 12 S. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 584, 14 S. Ct. 934, 38 L. Ed. 830; Davis v. United States, 37 App. D. C. 126, 133."

It thus appears that it was distinctly ruled that the crimes denounced in these two sections are not inconsistent. There is no contention here that either count is defective in itself. The sentence being less than might have been imposed under a single count, it is unnecessary to determine whether sentence might have been imposed as for two offenses.

The second assignment of error relates to the refusal of the court to grant the following instruction: "The court instructs the jury that upon the trial of a criminal case by a jury the law contemplates the concurrence of 12 minds in the conclusion of guilt before conviction can be had. Each individual juror must be satisfied beyond a reasonable doubt of the defendant's guilt before he can, under his oath, consent to a verdict of guilty. Each juror should feel the responsibility resting upon him as a member of the jury, and should realize that his own mind must be convinced beyond a reasonable doubt of the defendant...