Phillips v. United States

• Decision Date: 07 April 1920
• Docket Number: 3317.
• Citation: 264 F. 657
• Parties: PHILLIPS v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

264 F. 657

PHILLIPS v. UNITED STATES. ^[1]

No. 3317.

United States Court of Appeals, Fifth Circuit.

April 7, 1920

Frederick T. Saussy, of Savannah, Ga., for plaintiff in error.

John W Bennett, U.S. Atty.

Before WALKER, Circuit Judge, and CALL and HUTCHESON, District Judges.

HUTCHESONDistrict Judge.

This writ of error is prosecuted from the action of the court below in denying a motion filed in arrest of judgment, and in proceeding to judgment on a verdict of guilty.The errors assigned are: (1) That the indictment is void, since it joins charges of misdemeanor and felony; (2) that the verdict is uncertain and void, as not determining the count or counts under which defendant was convicted, some of the counts of the indictment charging felony, and some misdemeanor; (3) because the indictment misjoined offenses, a portion of the offenses charged being entirely disconnected from others; and (4) that no formal judgment of conviction was entered until the term following the verdict.

The indictment charged the defendant with violation of the law in connection with the maintenance and operation of a still-- the first count covering the possession without registration the second count, carrying on the business without having given bond; the third count, carrying on the business with intent to defraud the tax; the fourth count, with unlawfully working in a distillery on which the registered distillery sign was not placed.The first three counts charge felony the fourth, a misdemeanor.

While it may be conceded that the common law did not permit the joinder of a felony with a misdemeanor in the same indictment, even in separate counts thereof, the common-law rule has been greatly modified by numerous decisions, under which the general rule now is that felonies and misdemeanors, forming part of the development of the same transaction, may be joined in the same indictment in different counts, and this even where not affected by statute.SeeStandard Ency. of Procedure, vol. 12, p. 522.

Under section 1024 of the Revised Statutes of the United States (Comp. St. Sec. 1690), which provides:

'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated'

-- counts in an indictment may be properly joined, although one be for misdemeanor, and one for felony.United States v. Ridgway (D.C.)199 F. 286;Glass v. U.S.,222 F. 773, 138 C.C.A. 321;Kreuzer v. United States,254 F. 34, 165 C.C.A. 444.For these reasons, the first assignment is overruled.

The third assignment of error, claiming misjoinder because one count applied to lawful and the other to unlawful distilleries, must also be overruled, since it is a...