Optner v. United States

• Decision Date: 07 May 1926
• Docket Number: No. 4526.,4526.
• Parties: OPTNER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

13 F.2d 11 (1926)

OPTNER v. UNITED STATES.

No. 4526.

Circuit Court of Appeals, Sixth Circuit.

May 7, 1926.

David D. Stansbury, of Chicago, Ill. (Walter McKenzie, of Detroit, Mich., on the brief), for plaintiff in error.

Chas. A. Meyer, Asst. U. S. Atty., of Detroit, Mich. (Delos G. Smith, of Detroit, Mich., on the brief), for the United States.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

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

While the dates of the filing and position in the record of the motion, entry, and demurrer would indicate that the demurrer was filed after disposition of the motion, yet we do not think that matter is of serious importance. It is conceded that counts 4 and 5 were properly joined. The sustaining of the motion to quash counts 1, 2, and 3, because the offenses charged therein were barred by the statute of limitation or for any other reason, wholly eliminated the question of misjoinder and obviated the necessity of requiring the United States attorney to elect upon which count he would proceed to trial.

In support of the claim of plaintiff in error that the court erred in overruling the demurrer to the indictment, counsel cite and rely upon the case of McElroy v. U. S., 164 U. S. 76, 127 S. Ct. 31, 41 L. Ed. 355. In that case there were four indictments — one against a number of defendants for assault with intent to kill; a second indictment against the same defendants for assault with intent to kill another individual; a third indictment against the same defendants for arson of a dwelling house; and a fourth indictment against three of the same defendants for the arson of another dwelling house. All of these indictments were consolidated over the objections of the defendants and tried as one cause. The court held that their consolidation was not warranted by section 1024, Revised Statutes (Comp. St. § 1690), because of the different defendants and the different nature of the offenses charged. It would seem unnecessary to say that the decision of the Supreme Court in that case has no application whatever to one indictment charging in separate counts the one defendant with separate offenses even though such offenses are improperly joined.

It is the claim of plaintiff in error that this indictment is fatally defective because of duplicity. There is a substantial difference between duplicity and misjoinder, although this distinction is not always strictly observed in the use of these terms. Duplicity consists in joining in the same count two or more distinct and separate offenses. Misjoinder is the charging in separate counts, separate and distinct offenses arising out of wholly different transactions having no connection or relation with each other. Where the facts stated in separate counts of an indictment are sufficient to charge an offense, the indictment is not vulnerable to a demurrer because of misjoinder. The government may enter a nolle prosequi as to counts improperly joined or it may be required to elect upon which counts it will proceed to trial. Pointer v. U. S., 151 U. S. 396, 404, 14 S. Ct. 410, 38 L. Ed. 208; Connors v. U. S., 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033, cited with approval in McElroy v. U. S., supra, at page 80 (17 S. Ct. 31); U. S. v. Nye (C. C.) 4 F. 889, 892.

The defendant also objected to the introduction in evidence of the schedule in bankruptcy filed by the bankrupt for the reason "that the law as stated in section 7, subdivision 9, of the Bankruptcy Act (Comp. St. § 9591), provides that none of the testimony in the Bankruptcy Act may be used against defendant. * * *" In Ensign v. Pennsylvania, 227 U. S. 592, 599, 33 S. Ct. 321, 323 (57 L. Ed. 658), the Supreme Court said: "We deem it clear that it is only the testimony given upon the examination of the bankrupt under clause 9 that is prohibited from being offered in evidence against him in a criminal proceeding. The schedule referred to in the eighth clause and the oath of the bankrupt verifying it, are to be `filed in court,' and, therefore, are of course to be in writing. The word `testimony' more probably refers to oral evidence." This disposes of the only objection made to the introduction of the schedule in evidence.

It is insisted by counsel for plaintiff in error that the above statement is merely obiter because the court also held that the...