Emanuel v. United States, 184.
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Citation | 196 F. 317 |
| Docket Number | 184. |
| Parties | EMANUEL v. UNITED STATES. |
| Decision Date | 08 April 1912 |
196 F. 317
EMANUEL
v.
UNITED STATES.
No. 184.
United States Court of Appeals, Second Circuit.
April 8, 1912
[196 F. 318] [Copyrighted Material Omitted] [196 F. 319]
House, Grossman & Vorhaus (Robert C. Beatty, of counsel), for plaintiff in error.
Henry A. Wise, U.S. Atty. (Wolcott H. Pitkin, Asst. U.S. Atty., of counsel), for the United States.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
PER CURIAM.
The conspiracy indictment contained a single count. One of the other five was disposed of without submission to the jury. The other four contained ten counts of which two were nolled. Section 5480 contains the words 'the indictment, information, or complaint may severally charge offenses to the number of three when committed within the same six calendar months. ' The conspiracy indictments were consolidated, and, when consolidated, the offenses charged were more than three in number, and the time of [196 F. 320] their commission was longer than six calendar months. The court ordered the six indictments consolidated under the very broad authority conferred by section 1024 (U.S. Comp. St. 1901, p. 720). It is contended that this was error because of the provision of section 5480 above quoted. This is no new question, and the decisions in different districts are not uniform. But this court in Booth v. U.S., 154 F. 836, 83 C.C.A. 552, expressly decided the precise question holding that in cases like this the court had the power under section 1024 to consolidate; and we are of the opinion that the new authorities which defendant here presents do not call for the overruling of that decision. The clause in section 5480 which is relied on by defendant is omitted from Criminal Code, Sec. 215 (Act March 4, 1909, c. 321, 35 Stat. 1130 (U.S. Comp. St. Supp. 1911, p. 1653)), so that the question now presented will not arise in the future. The question is one of practice rather than of substantial right and we are satisfied that our former decision should be followed here.
Two points not raised in the Booth Case are here presented. The clause in section 1024 reads: 'When there are several charges against any person for the same act or transaction,' etc. It is contended that this applies to charges against a single defendant not against several defendants; and, in support of the argument, it is pointed out that this provision first appeared in Act Feb. 26, 1853, c. 80, 10 Stat.p. 162, reading as follows: 'Whenever there are or shall be several charges against any person or persons for the same act or transaction,' etc. When this clause was carried into the revision which was adopted as the Revised Statutes, the words 'or persons' was omitted. The very first section of the Revised Statutes, however, provides that, in determining the meaning of said statutes, 'words importing the singular number may extend and be applied to several persons or things. ' There was, therefore, no necessity for retaining the omitted words. The section would be extended to cover several persons as well as a single one, unless there were some good reason why it should not be thus extended. No such reason appears or is suggested.
It is further contended that the conspiracy indictment could not be consolidated with the indictments under section 5480 because the latter were found against five named defendants, whereas the conspiracy indictment charges that these five defendants did conspire together and with divers other persons to the jury unknown. The defendants, however, were the same in all six indictments. The 'divers persons unknown' were not indicted or made parties.
It is next contended that the court erred in allowing only three challenges on all the indictments; it being insisted that defendants should have had three on each original indictment, eighteen in all. This proposition is really disposed of by our ruling on the question of consolidation. The case mainly relied on by defendant is Betts v. U.S., 132 F. 228, 65 C.C.A. 452, but in that case there was no consolidation. Nine indictments were tried at the same time. In the case...
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Kelly v. United States, 2978.
...section 1024 (Williams v. United States, supra, 168 U.S. at pages 390, 391, 18 Sup.Ct. 92, 42 L.Ed. 509); and in Emanuel v. United States, 196 F. 317, 320, 116 C.C.A. 137 (C.C.A. 2) it was held that where several defendants were included in each of several indictments, one charging conspira......
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United States v. Bogy, No. 5040
...Clark v. U. S. (C.C.A.) 293 F. 301; Preeman v. U. S. (C.C.A.) 244 F. 1; Sandals v. U. S. (C C.A.) 213 F. 569; Emanuel v. U. S. (C.C. A.) 196 F. 317; Byron v. U. S. (C.C.A.) 259 F. 371; U. S. v. Clark (D.C.) 125 F. 92; O'Hara v. U. S. (C.C.A.) 129 F. 551; Stokes v. U. S., 157 U.S. 187, 15 S.......
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United States v. Caine, No. 67 Cr. 432.
...is not tested by rules applicable to indictments for obtaining money under 270 F. Supp. 804 false pretenses. Emanuel v. United States, 196 F. 317 (2d Cir. 1912); United States v. Crummer, 151 F.2d 958 (10th Cir. 1945), cert. denied, 327 U.S. 785, 66 S.Ct. 704, 90 L.Ed. 1012 (1946); Leche v.......
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Rettich v. United States, No. 3054.
...United States (C.C.A.) 202 F. 377, 381, 382, certiorari denied 229 U.S. 613, 33 S.Ct. 772, 57 L.Ed. 1352; Emanuel v. United States (C.C.A.) 196 F. 317. A different rule may exist where cases are merely tried together, but not There was no prejudicial error in the remarks of the government's......
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United States v. Bogy, No. 5040
...Clark v. U. S. (C.C.A.) 293 F. 301; Preeman v. U. S. (C.C.A.) 244 F. 1; Sandals v. U. S. (C C.A.) 213 F. 569; Emanuel v. U. S. (C.C. A.) 196 F. 317; Byron v. U. S. (C.C.A.) 259 F. 371; U. S. v. Clark (D.C.) 125 F. 92; O'Hara v. U. S. (C.C.A.) 129 F. 551; Stokes v. U. S., 157 U.S. 187, 15 S.......
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Kelly v. United States, 2978.
...section 1024 (Williams v. United States, supra, 168 U.S. at pages 390, 391, 18 Sup.Ct. 92, 42 L.Ed. 509); and in Emanuel v. United States, 196 F. 317, 320, 116 C.C.A. 137 (C.C.A. 2) it was held that where several defendants were included in each of several indictments, one charging conspira......
-
United States v. Caine, No. 67 Cr. 432.
...is not tested by rules applicable to indictments for obtaining money under 270 F. Supp. 804 false pretenses. Emanuel v. United States, 196 F. 317 (2d Cir. 1912); United States v. Crummer, 151 F.2d 958 (10th Cir. 1945), cert. denied, 327 U.S. 785, 66 S.Ct. 704, 90 L.Ed. 1012 (1946); Leche v.......
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Rettich v. United States, No. 3054.
...United States (C.C.A.) 202 F. 377, 381, 382, certiorari denied 229 U.S. 613, 33 S.Ct. 772, 57 L.Ed. 1352; Emanuel v. United States (C.C.A.) 196 F. 317. A different rule may exist where cases are merely tried together, but not There was no prejudicial error in the remarks of the government's......