Ingram v. United States

• Citation: 272 F.2d 567
• Decision Date: 05 November 1959
• Docket Number: No. 7937.,7937.
• Parties: Henry Dewitt INGRAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

272 F.2d 567 (1959)

Henry Dewitt INGRAM, Appellant, v. UNITED STATES of America, Appellee.

No. 7937.

United States Court of Appeals Fourth Circuit.

Argued October 8, 1959.

Decided November 5, 1959.

William L. Osteen, Greensboro, N. C. (Fred M. Upchurch, and Booth & Osteen, Greensboro, N. C., on the brief), for appellant.

H. Vernon Hart, Asst. U. S. Atty., Greensboro, N. C. (James E. Holshouser, U. S. Atty., Boone, N. C., on the brief), for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and FIELD, District Judge.

SOBELOFF, Chief Judge.

The sole issue on this appeal is whether the appellant is entitled to a new trial because of a misjoinder of defendants in a criminal proceeding. Henry Dewitt Ingram was convicted in two cases of removing, concealing and possessing non-tax-paid liquor. In one case (No. Cr. 166 G-59, which will be referred to as "No. 166"), arising out of events on the evening of March 21, 1959, Ingram was indicted with Clara, his wife, James Gill, Janie Gill and Hozel Duke. In the other case (No. Cr. 497 G-58, which will be referred to as "No. 497"), growing out of events on November 26, 1958, Ingram was indicted with Fred Kirkpatrick and James Sadler. The cases were consolidated and tried together upon motion of the Government, over Ingram's objection.

After the jury was empaneled, the attorney for the Ingrams moved that in No. 166 their trial be severed from the trial of the Gills and Duke. The ground of the motion was that the alleged offense of the Ingrams was separate from that of the Gills and Duke, although the general language of the indictment did not indicate this. The court denied the Motion for Severance, pointing out that there was nothing before the court to show that a severance was justified or that the Ingrams would be prejudiced by being tried with the Gills and Duke. The trial proceeded against the Ingrams and their three codefendants in 166 and against Ingram and his two codefendants in 497, together. When the testimony was concluded, Clara Ingram, Kirkpatrick and Sadler changed their pleas to guilty. In No. 166, the jury acquitted Duke, but convicted the two Gills and Ingram. They also found Ingram guilty in No. 497. He then moved in arrest of judgment and for a new trial, which was denied.

In No. 166, it appears from testimony that two police officers were watching appellant's house, at 307 Hay Street in High Point, North Carolina, between 7:30 and 8:00 p. m. on March 21, 1959. The officers saw someone they identified as appellant going to a woodshed in back of his house where he picked up some objects and carried them away. Shortly afterwards, the officers caught Ingram's wife carrying a gallon of non-tax-paid whiskey away from the woodshed. The officers also found, at the woodshed where she had picked up the whiskey, two more half-gallon jars of non-tax-paid whiskey.

Simultaneously, other officers were watching the Gills' house, located at 301 Hay Street, 200 yards north of appellant's home. At about the time appellant's wife was apprehended at 307 Hay Street, the other officers found Janie Gill in possession of a small quantity of non-tax-paid whiskey in her house at 301 Hay Street, and also discovered fifty-six and one-half gallons of non-tax-paid liquor in a tool house located directly behind the Gills' home. Aside from the identity of time and the relatively short distance between the two homes, there is nothing in the record indicating a connection between the violation of the Ingrams at 307 Hay Street with that of the Gills at 301.

Two rules of the Federal Rules of Criminal Procedure 18 U.S.C.A. are pertinent here. Rule 8 (b) states:

"Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

Rule 14 provides:

"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."

As to both rules, the Advisory Committee on Rules noted that they are a codification of pre-existing law.

The appellant maintains that since no connection was shown between the Ingrams' offense and that of the Gills, we have here no common act or transaction, and therefore the statute did not permit a common indictment and trial. In argument before use the Government conceded that the defendants should not have been tried together, but argued that where there is a misjoinder of defendants, relief is in the discretion of the trial judge, and that denial of a severance or a new trial is not error unless abuse of discretion is shown. Since the District Judge repeatedly cautioned the jury to consider each offense and the evidence applicable thereto separately, the Government contends that there is no showing of prejudice to the appellant, and that such prejudice must affirmatively appear for there to be an abuse of discretion under Rule 14.

Secondly, the Government argues that in the absence of a showing of prejudice, the Harmless Error Rule, Rule 52(a) of the Rules of Criminal Procedure 18 U.S.C.A., applies and that even if there was error, it should be disregarded.

We must therefore consider whether it is within the trial judge's discretion to withhold relief where defendants, not engaged in the same act or transaction, are jointly indicted. In other words, does Rule 14 permit the court in its discretion to withhold relief in a case of improper joinder of defendants; or is the rule intended merely to confer discretion to grant relief, where prejudice to a defendant appears, in a case where defendants have been properly joined?

The Government cites several cases, and there are many others, holding that the grant or denial of motions for severance and for a new trial rest within the discretion of the trial court, and refusal of such motions is not reversible error unless an abuse of discretion is affirmatively shown. Stilson v. United States, 1919, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154; Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Stokes v. United States, 5 Cir., 1938, 93 F.2d 744; Middleton v. United States, 4 Cir., 1957, 249 F.2d 719; Dowling v. United States, 5 Cir., 1957, 249 F.2d 746. However, in none of these cases does it appear that multiple defendants, not connected in any manner whatsoever, were allowed to be jointly tried and convicted.

Rule 8(b) specifically states when it is permissible to join defendants in a single indictment and trial. It provides that two or more defendants may be jointly charged if they are alleged to have participated in the same act or transaction. The necessary inference from this is that they may not be jointly indicted or tried in the absence of a common act or transaction. Rule 14 confers upon the trial judge discretion to relieve from prejudicial joinder. Several defendants may have been involved in the same act or transaction, but for some reason, one or more of them may be prejudiced by the normally permissible joinder. It is to avoid injustice in such a situation that Rule 14 vests the trial judge with wide discretion.¹ But the joinder of defendants and offenses totally unconnected is prohibited by Rule 8(b). This is not a matter of discretion; both the statutory language and the decided cases make this clear.

A leading case is McElroy v. United States, 1896, 164 U.S. 76, 81, 17 S.Ct. 31, 33, 41 L.Ed. 355, decided when the statute was substantially the same as the present Rule 8(b). Five defendants were indicted for assault and arson occurring on May 1, 1894, while only three of them were separately indicted for arson occurring on April 16, 1894. The court ordered the indictments consolidated, and all defendants were tried together and convicted. The Supreme Court reversed, as the indictments were for separate and distinct offenses, independent of each other. In reply to the Government's contention there that the defendants were not prejudiced by the consolidation, the Supreme Court, through Chief Justice Fuller said:

" * * * But we do not concur in this view. While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punishment,

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