Garrett v. United States

• Decision Date: 18 February 1927
• Docket Number: No. 4744.,4744.
• Citation: 17 F.2d 479
• Parties: GARRETT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

17 F.2d 479 (1927)

GARRETT v. UNITED STATES.^*

No. 4744.

Circuit Court of Appeals, Fifth Circuit.

February 18, 1927.

K. C. Barkley and J. L. Webb, both of Houston, Tex., for plaintiff in error.

H. M. Holden, U. S. Atty., and Clarence Kendall, Asst. U. S. Atty., both of Houston, Tex. (Howell Ward, Asst. U. S. Atty., of Houston, Tex., on the brief), for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Plaintiff in error, hereafter called defendant, was convicted on 7 counts of an indictment charging him with improper use of the mails in furtherance of a scheme to defraud. There are 139 assignments of error. Fortunately, in the view we take of the case, it is unnecessary to discuss any of them.

The indictment contains 17 counts, none of which was numbered, and is very lengthy. The scheme is charged with great particularity and detail in the first count, and is incorporated in the 16 other counts by reference. A demurrer to the indictment was overruled in part and sustained in part, and the clerk was directed to strike out parts of the indictment and to number the counts. In addition to entering a formal order setting out the parts to be stricken, the judge wrote on the margin of the indictment memoranda indicating what was to be erased, and a pencil was run through the words of the indictment. The parts stricken out amount to about 56 lines of the first count, and, as they relate to the formation and operation of the scheme, necessarily every count in the indictment is affected.

It is elementary that a demurrer to a count of an indictment should be either entirely sustained or overruled, and it is improper to sustain it in part and overrule it in part. However, there are some cases in which a partial overruling has been held to not result in prejudicial error. Two of those relied on by the government are Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070, and Tenenbaum v. U. S. (C. C. A.) 11 F.(2d) 927. In neither of those cases was there any physical change made in the indictment, and they are easily distinguished from the case at bar. The other cases cited are not in point.

In this case it is evident that the action of the court resulted in amending the indictment, something that could not be done legally, and amounts to reversible error. Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849.

Furthermore, in numbering the counts, a mistake was made. What was really count 1 was overlooked,...