Morris v. United States

• Decision Date: 10 May 1926
• Docket Number: No. 4720.,4720.
• Citation: 12 F.2d 727
• Parties: MORRIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.2d 727 (1926)

MORRIS et al. v. UNITED STATES.

No. 4720.

Circuit Court of Appeals, Ninth Circuit.

May 10, 1926.

Maxwell McNutt and C. A. Linn, both of San Francisco, Cal., for plaintiffs in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

Against each of the first two indictments demurrers and motions to quash were interposed on the ground of misjoinder of causes and of parties, in that in the first count in each both defendants were charged with making a false return of income, while in the second count in each but one defendant was charged with perjury in making a false affidavit to the return. Clearly there was no abuse of discretion in the court's ruling. The joinder of the charges of making false returns was permissible under section 1024, Revised Statutes (Comp. St. § 1690), for they embraced two or more acts or transactions connected together and of the same class of crimes. The plaintiffs in error rely on McElroy v. United States, 164 U. S. 76, 17 S. Ct. 31, 41 L. Ed. 355, where six individual defendants were indicted and charged with assault with intent to kill on April 16 and an assault with intent to kill another person on the same day, arson of the dwelling house of another on May 1, and three of the defendants were charged with arson of the dwelling house of still another on April 16. The court held that such a joinder cannot be sustained where the parties are not the same, and where the offenses are in no wise parts of the same transaction and not provable by the same evidence. But such is not the case here. The defendants were charged in each indictment with making false partnership income returns and one of them was charged with making false affidavit thereto. These charges grew out of the same transactions. The falseness of the returns and the falseness of the affidavits were provable by the same evidence, and both defendants might properly have been charged with complicity in the perjury. But in any event the joinder of counts for perjury with counts for making false returns is no ground for reversal in a case where, as here, the jury acquitted the defendants on all the perjury counts. Commonwealth v. Adams, 127 Mass. 15; Ketchingman v. State, 6 Wis. 426; State v. Morris, 58 Or. 397, 114 P. 476; State v. Solon, 247 Mo. 672, 153 S. W. 1023; Myers v. State, 92 Ind. 390; Reed v. State, 147 Ind. 41, 46 N. E. 135.

Error is assigned to the denial of the petition of the defendants for the suppression of evidence and the return of certain of their books and papers. Concerning this assignment, all that appears from the record is that a petition was filed alleging that certain named officers of the Internal Revenue Department had taken the books into their possession, had examined the same, and had made memoranda therefrom, and had delivered the books to the United States attorney; that the examination and seizure without a search warrant was illegal for all purposes except the determination of the civil tax liability of the petitioners. The prayer of the petition was that the court direct the return of the papers and books to the petitioners, and that the use thereof in evidence be suppressed, to which petition it appears one of the officers of the Internal Revenue Department answered, denying that he or the other named officers had possession of said books or papers, and upon a hearing the petition was denied. No error can be predicated upon that ruling of the court. The books and papers referred to in the petition were not offered in evidence on the trial, and, even if there were error in denying the petition, it was not error which in any way affected the trial of the cause so far as appears from the bill of exceptions.

Error is assigned to the consolidation of the six indictments for trial. Irrespective of statutory authority the consolidation of indictments for trial as was done in this case ordinarily rests in the court's sound discretion, a discretion to be exercised with a view to the avoidance of unnecessary delay and expense and in the interest of both parties, except in a case where the charges are of such a nature that consolidation will result in prejudice to the defendant or embarrassment in the presentation of his defense. Logan v. United States, 144 U. S. 263, 296, 12 S. Ct. 617, 36 L. Ed. 429; Brown v. United States, 143 F. 60, 74 C. C. A. 214. And, if regard is had to the statute, it will be seen that the indictments in the present case alleged against the defendants...