Rooney v. United States
| Decision Date | 10 March 1913 |
| Docket Number | 2,107. |
| Citation | 203 F. 928 |
| Parties | ROONEY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Indictment for violation of provisions of Act Jan. 30, 1897, c. 109, 29 Stat. 506, entitled: 'An act to prohibit the sale of intoxicating drinks to Indians, providing penalties therefor and for other purposes.'
The plaintiff in error was jointly indicted with one Vincent Wontock for unlawfully and feloniously introducing intoxicating liquor into the Indian country in violation of the provisions of Act Jan. 30, 1897, c. 109, 29 Stat. 506 prohibiting the sale of intoxicating drinks to Indians. The facts upon which the indictment was founded were as follows On the evening of the 14th of April, 1911, the plaintiff in error, Stewart Rooney, an Indian, together with other Indians, was engaged in a gambling game at the home of William Metcalf, situated on the Siletz Indian reservation in Lincoln county, Or. There was also present one Vincent Wontock, a white boy who was in the employ of Rooney as a laborer. At said time and place Rooney, the plaintiff in error, solicited Noble Felix, one of the other Indians who was there present, to contribute to a fund for the purchase of whisky. Another Indian, Clayborn Arden, and Rooney, also contributed to the fund. The money thus collected was turned over to Wontock by Rooney, with instructions or directions to go to Toledo (situated outside of the reservation and about nine miles distant), and buy some whisky for him, Rooney, and also for the Indians Noble Felix and Clayborn Arden. Wontock then borrowed a horse from Noble Felix, rode to Toledo, and returned to the reservation about 4 o'clock on the following morning, bringing with him three bottles of whisky. The whisky was distributed in Metcalf's barn, Rooney himself taking one, Noble Felix another, and Clayborn Arden the third. At the trial of the case there was introduced in evidence a bottle containing whisky which had been taken from Clayborn Arden by William Metcalf while he was asleep at the Metcalf residence.
The indictment, as originally filed, contained three counts. At the close of its case, the government, by its attorney, moved the court to nolle prosequi the second count of the indictment; whereupon the court made the order requested and withdrew the second count from the consideration of the jury.
The first count of the indictment charged: 'That Vincent Wontock on or about the 15th day of April, 1911, at Siletz, in the state and district of Oregon, and within the jurisdiction of this court, did unlawfully and feloniously introduce into the Indian country, to wit, in and onto the Siletz Indian reservation, intoxicating liquor, to wit, two bottles of whisky, without having theretofore obtained authority in writing from the War Department, and that Stewart Rooney on or about the 15th day of April, 1911, at Siletz, in the state and district of Oregon, and within the jurisdiction of this court, was then and there at the commission of said felony feloniously present aiding, inciting and abetting the said Vincent Wontock therein; and for the commission of said felony the said Stewart Rooney on or about the 15th day of April, 1911, at Siletz, in the state and district of Oregon, and within the jurisdiction of this court, did feloniously counsel, aid, incite, and procure the said Vincent Wontock to commit, in the manner and form aforesaid, the said felony, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.'
The third count of the indictment charged: 'That Vincent Wontock and Stewart Rooney on or about the 15th day of April, 1911, at Siletz, in the state and district of Oregon, and within the jurisdiction of this court, did unlawfully and feloniously introduce into the Indian country, to wit, in and onto the Siletz Indian reservation, intoxicating liquor, to wit, two bottles of whisky, without having theretofore obtained authority in writing from the War Department, or from any officer hereunto duly authorized by the War Department, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.'
At the close of the testimony the defendants, and each of them, by their attorney, moved the court to require the government to elect upon which court it relied for conviction upon the testimony offered. The motion was denied.
The jury returned a verdict finding the defendant Stewart Rooney guilty, and Vincent Wontock not guilty as charged.
M. O. Wilkins, of Portland, Or., for plaintiff in error.
John McCourt, U.S. Atty., and Walter H. Evans, Asst. U.S. Atty., both of Portland, Or.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
MORROW Circuit Judge (after stating the facts as above).
The assignment of errors raises two points:
First. That the court erred in overruling the motion made by the defendant to require the government to elect upon which court of the indictment it would rely.
Second. That the conviction of the plaintiff in error cannot stand after the jury had found Wontock not guilty.
1. In the first count of the indictment Vincent Wontock is charged as principal, and Stewart Rooney as aiding, inciting, and abetting the said Vincent Wontock in the commission of the crime. In the third count of the indictment both Wontock and Rooney are charged as principals.
Section 1024, R.S. (Act Feb. 26, 1853, c. 80, Sec. 1, 10 Stat. 161 (U.S. Comp. St. 1901, p. 720)), 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 joined in such cases, the court may order them to be consolidated.'
We are of opinion that the action of the court below in refusing to require the United States to elect upon which count of the indictment it would rely for conviction was without error. The charges against the plaintiff in error clearly come within the class of charges mentioned in the section above set forth. It would, indeed, be difficult to conceive of two charges more closely connected, and the joinder of which would be more proper, within the meaning of the section, than the charges against Rooney set forth in the indictment in this case. Both charges are based on the same transaction and on the same array of facts. Had the motion of the plaintiff in error to require the government to elect upon which count it relied for conviction been granted, his position before the jury would have remained unchanged. The failure of the trail judge to grant the motion did not place him at a disadvantage, nor were his rights in any way prejudiced or jeopardized. That the question was one which rested solely in the discretion of the court is well settled.
In McGregor v. United States, 134 F. 187, 194, 69 C.C.A. 477, 484, the motion to quash the indictment for alleged duplicity was based on the fact that some of the counts charged that the defendants conspired to defraud the United States, and other of the counts charged that the defendants, being officers and agents, or officers and clerks, violated certain sections of the Revised Statutes by receiving money from an alleged co-conspirator for procuring, or aiding to procure, a contract mentioned in the counts relating to the conspiracy.
In the case of Dolan et al. v. United States, 133 F. 440 446, 69 C.C.A. 274, 280, ten indictments had been found and returned against all four of the defendants, based upon certain sections of the Revised Statutes. These indictments were identical in language, except that each one dealt with a separate person whom it was charged that the defendants aided and abetted in violating the provisions of said sections. Each of the indictments contained ten separate counts. The counts were all based upon the same...
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