Kreuzer v. United States

• Decision Date: 28 October 1918
• Docket Number: 4582.
• Citation: 254 F. 34
• Parties: KREUZER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F. 34

KREUZER v. UNITED STATES.

No. 4582.

United States Court of Appeals, Eighth Circuit.

October 28, 1918

Rehearing Denied January 20, 1919.

Wm. R Orthwein and Shephard Barclay, both of St. Louis, Mo. (S Mayner Wallace, of St. Louis, Mo., on the brief), for plaintiff in error.

Robert W. Childs, Sp. Asst. Atty. Gen. (Arthur L. Oliver, U.S Atty., of St. Louis, Mo., on the brief), for the United States.

The plaintiff in error, hereafter called the defendant, was convicted of a violation of several sections of the oleomargarine laws. The indictment contained 10 counts, all parts of the same transaction and connected together. Three of the counts charged were misdemeanors, and the others felonies. A demurrer was filed to the indictment, alleging as grounds:

First. That said indictment, and each and every count thereof, fails to state facts sufficient to constitute an offense against him under the laws of the United States.

Second. That said indictment, and each and every count thereof, is invalid on the ground of duplicity.

Third. That said indictment, and each and every count thereof, contains contradictory averments.

Fourth. Because said indictment, and each and every count thereof, is too vague, general, indefinite, and uncertain to afford the accused proper notice to plead and prepare their defense, and sets forth no specific offense under the laws of the United States.

Fifth. Because said indictment, and each and every count thereof, fails to show that said defendant in any way committed, or undertook to commit, an offense against the laws of the United States.

Sixth. Because there is a misjoinder in the same indictment of charges of misdemeanor and felony.

The demurer was overruled, and upon a trial to a jury a verdict of guilty on each count was returned. The court on January 30, 1915, sentenced the defendant on the second, third and fourth counts, and deferred sentence on the remaining counts until the March term of the court. A writ of error was allowed on feb. 2, 1915, and a supersedeas bond approved. At the March term the court sentenced the defendant on the fifth count. No sentences have been imposed on the other counts.

The judgment and sentence on January 30, 1915, was a fine of $5,000 and costs, and imprisonment for two years in the penitentiary on the second count. On the third and fourth counts the sentence was two years' imprisonment on each count, 'to run and terminate concurrently with the sentence on the second count. ' No fine was imposed on these two counts. The judgment and sentence on the fifth counts was a fine of $100 and 30 days' imprisonment in the county jail. After serving the 30 days' imprisonment, he was discharged on his affidavit of poverty, without payment of the fine. By certiorari the record of the last judgment was made a part of the record in this cause.

The assignment of errors filed when the writ of error was granted assigned three errors. These were as follows:

First Assignment of Error.

The court erred in overruling the demurrer of defendant to each and every count of the indictment herein against him.

Second Assignment of Error.

The court erred in overruling the objection made by defendant to the testimony of witness L. P. Mattingly, and allowing him to testify that in his opinion Exhibit 29 had not been packed in a licensed factory, on the ground that the witness was not a qualified expert, and on the ground that it was a question for the jury.

Third Assignment of Error.

The United States has improperly joined in the indictment herein alleged charges which cannot properly be united in one proceeding.

On June 18, 1915, an amended assignment of errors was filed by leave of the District Court, but for reasons hereinafter stated it is not necessary to set it out herein.

On January 12, 1916, by leave of this court, 6 additional assignments of error were filed. These were as follows:

(28) The said District Court erred at the trial in allowing witness Daly to testify for plaintiff that government witness Mattingly's statement about the barricade was correct.

(29) The said District Court erred at the trial in submitting each of the counts to the jury, because there was not sufficient evidence as to each to warrant such submission.

(30) The said District Court erred at the trial by charging the jury that defendant had not testified in his own behalf.

(31) The said District Court erred at the trial by charging the jury that defendant presumed to be innocent until proven to be guilty beyond reasonable doubt, and the court's remarks on that subject were inadequate, and not up to the measure of the defendant's immunity under the Constitution.

(32) The said District Court erred at the trial in charging the jury that they might under the evidence find the defendant guilty 'of all the charges in this indictment.'

(33) The said District Court erred in entering judgment and sentence as to each finding, and as to each count whereon such judgment and sentence were entered herein.

Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

It is urged that there was a misjoinder of charges, but the contention is without merit. Section 1024, Rev. St. (Comp. St. 1916, Sec. 1690), permits such joinders, as each of the counts is for acts connected together, and for transactions of the same class of crimes. Logan v. United States, 144 U.S. 263, 295, 12 Sup.Ct. 617, 36 L.Ed. 429; Pointer v. United States, 151 U.S. 396, 403, 14 Sup.Ct. 410, 38 L.Ed. 208; Ingraham v. United States, 155 U.S. 434, 436, 15 Sup.Ct. 148, 39 L.Ed. 213; Dolan v. United States, 133 F. 440, 446, 69 C.C.A. 274; McGregor v. United States, 134 F. 187, 69 C.C.A. 477; Rooney v. United States, 203 F. 928, 122 C.C.A. 230; Norton v. United States, 205 F. 593, 123 C.C.A. 609. None of the authorities cited by counsel for the defendant is in point. In McElroy v. United States, 164 U.S. 76, 17 Sup.Ct. 31, 41 L.Ed. 355, it was held that indictments against several defendants for assault cannot be consolidated with an indictment against only some of the defendants for arson and another indictment for arson committed two weeks later. The other authorities cited do not pass upon this question.

As the sentences on the third and fourth counts are to be executed concurrently with that imposed on the second count, and therefore but one punishment has been imposed, it is only necessary to determine the sufficiency of that count. Evans v. United States, 153 U.S. 608, 14 Sup.Ct. 939, 38 L.Ed. 839; Billingsley v. United States, 178 F. 653, 662, 101 C.C.A. 465; Norton v. United States, supra, 205 F. 602, 123 C.C.A. 609.

Should the demurrer to the second count have been sustained? May v. United States, 199 F. 42, 117 C.C.A. 420, rules this contention, and upon the authority of that case we hold it untenable. See, also, Marhoefer v. United States, 241 F. 48, 154 C.C.A. 48.

The assignment that the court erred in overruling the objection to the testimony of Mr. Mattingly, because he had not qualified as an expert, fails to set out the testimony admitted or its full...