Latses v. United States, 298.
| Decision Date | 23 December 1930 |
| Docket Number | No. 298.,298. |
| Citation | 45 F.2d 949 |
| Parties | LATSES et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
F. W. James, of Salt Lake City, Utah, for appellants.
George H. Lunt, Asst. U. S. Atty., of Salt Lake City, Utah (C. R. Hollingsworth, U. S. Atty., and E. C. Jensen, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for the United States.
Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.
The defendants were charged, in seven counts of an indictment, with violations of the National Prohibition Act. The first count charges possession of whisky at No. 444 West Second South, in Salt Lake City; the second count a sale at that place to one Casey, on August 7, 1929; the third count a sale at the same time and place to one Simpson. The fourth, fifth and sixth counts similarly charged possession and sales at the same place on August 13, 1929. The seventh count charged a nuisance. Before trial the first and fourth counts were eliminated by election of the government; the second and third were eliminated at the commencement of the trial because of a misdescription of the place; and at the close of all the evidence, the court directed an acquittal on the fifth and seventh counts, submitting to the jury only the sixth count, which charged the sale of a half pint of whisky to agent Casey. The jury convicted on this count, and the appellants were sentenced to six months in jail.
Twenty errors are assigned. Counsel for appellants states that many of his assignments, if considered alone, are not sufficient to justify reversal, but that taken together, reversible error is disclosed. Thus taking the case as a whole, it presents the ordinary case of two prohibition agents testifying to a sale, the defendants denying it, the court fairly charging the jury, and the jury convicting. A few of the assignments will be sufficient to indicate the nature of the questions presented on this appeal.
Error is assigned because of an alleged misjoinder of counts in the indictment. The National Prohibition Act (title 2, § 32) provides:
"In any affidavit, information, or indictment for the violation of this chapter, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed." 27 USCA § 49.
Tested by the general requirements of the Criminal Code (18 USCA § 557) that two or more acts complained of must be connected together, or be of the same class of offenses, the indictment is good. And, in addition, the ordinary rule is that an "acquittal on one misjoined count cures the misjoinder." Beaux Arts Dresses v. United States (C. C. A. 2) 9 F.(2d) 531, 533; Morris v. United States (C. C. A. 9) 12 F.(2d) 727; Weinhandler v. United States (C. C. A. 2) 20 F. (2d) 359. In the case at bar, the trial was limited to two sales at the same time and place and the nuisance count; and but one of these sales was submitted to the jury. Nor was there any reason for separate trials. Trial courts, confronted with congested dockets, must be and are allowed a wide discretion in the matter of separate trials, and such discretion is only reviewable where there is a clear abuse thereof, and where the record discloses that the rights of the defendants are thereby prejudiced. Krause v. United States (C. C. A. 8) 147 F. 442; Lennon v. United States (C. C. A. 8) 20 F.(2d) 490; Hale v. United States (C. C. A. 8) 25 F.(2d) 430; Brady v. United States (C. C. A. 8) 39 F.(2d) 312, 313. There is not the slightest reason advanced, in this case, for separate trials. If the government's evidence is true, the defendants were operating a saloon and jointly sold liquor to two government agents, who were together.
The trial court declined to exclude the witnesses from the court room. Wigmore, in his...
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