Moore v. United States

• Decision Date: 05 March 1923
• Docket Number: 3778.
• Citation: 288 F. 249
• Parties: MOORE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

288 F. 249

MOORE v. UNITED STATES.

No. 3778.

United States Court of Appeals, District of Columbia.

March 5, 1923

Submitted November 6, 1922.

Appeal from the Supreme Court of the District of Columbia.

E. M Hewlett and Royal A. Hughes, both of Washington, D.C., for appellant.

Peyton Gordon and J. H. Bilbrey, both of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BARBER Judge of the United States Court of Customs Appeals.

BARBER Acting Associate Justice.

This is an appeal from the judgment that the appellant, defendant below, was guilty of the crime of larceny.

The indictment contained four counts. The first charged appellant with larceny on the 18th day of April in the year of our Lord 1921, at the District of Columbia, of one automobile, of the value of $1,410, the property of one Genevieve V. Rouse and one Charles L. Rouse. The second charged him with larceny of one automobile of the same value at the same time and place, the property of the said Charles L. Rouse. As to the other counts, no question is raised here, because the court directed a verdict of not guilty thereon.

The jury returned a general verdict of guilty on the first and second counts. Thereupon the appellant filed his motion to arrest judgment on the first and second counts 'because the verdict rendered by the jury is insensible, repugnant as appears from the record. ' This motion was overruled exceptions thereto allowed, and appellant sentenced to imprisonment in the penitentiary for two years. Exception was also allowed to the sentence, but appellant relies here wholly upon the claimed error of the court in overruling his motion in arrest.

The only evidence which is incorporated in the record is that:

'Charles L. Rouse testified that money was contributed by himself and wife for the purchase of said automobile, but the machine belonged to him.'

The appellant argues that the verdict 'is not only uncertain, but is insensible, as well as illogical,' and claims that the jury has found him guilty of two separate and distinct offenses: (a) Stealing property of Genevieve V. Rouse and Charles L. Rouse; and (b) stealing the property of Charles L. Rouse. He contends it is shown by the evidence that the automobile referred to in the two counts of the indictment is one and the same, and argues that it could not at at one and the same time be the joint property of Genevieve V., and Charles L. Rouse and the individual property of Charles L. Rouse; hence the claim that the verdict was insensible and illogical.

Appellant took no exceptions to the charge of the court; did not request that the prosecution be required to elect upon which count of the indictment it would rely for conviction; did not request that the jury be instructed that it could bring in a verdict of guilty upon only one count; did not object to the consideration of both counts by the jury; and raised no issue at the trial that the ownership of the property was not proven as alleged in each count.

The law is well settled that it is permissible and may be desirable to join counts for several crimes of the same class in the same indictment and also to charge the same offense in different ways. Revised Statutes, Sec. 1024 (section 1690, Comp. St.); United States v. Dickinson, 25 Fed.Cas. 850, No. 14958; United States v. Peterson, 27 Fed.Cas. 515, No. 16037; Logan v. United States, 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429; Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208; Bishop's New Criminal Procedure, vol. 2, Secs. 444, 446, 449.

Instructive discussions of the propriety of the joinder of counts for different crimes in one indictment and proceedings that may be had thereunder, including motions in arrest, may be found in United States v. Peterson, supra, and United States v. Howell (D.C.) 65 F. 402. From these and other cited cases the rule would seem to be that, generally speaking, the motion in arrest will not be sustained, unless the offenses charged, and of which the defendant is found guilty, belong to different classes of crimes requiring different judgments.

But the appellant here relies upon the evidence to establish that the verdict is inconsistent and illogical. The law is that 'a judgment in a criminal case will, after conviction, be arrested only for matter appearing of record which would render the judgment erroneous if given; the evidence being no part of the record for such purpose.'

Corpus Juris, vol. 16, 1255; U.S. v. Maxey (D.C.) 200 F 997; U.S. v. Marrin (D.C.) 159 F. 767; Demolli v. U.S., 144 F. 363, 75 C.C.A. 365, 6 L.R.A. (N.S.) 424, 7 Ann.Cas. 121; Bond v. Dustin, 112 U.S. 604, 5 Sup.Ct. 296, 28 L.Ed. 835; ...