Sidebotham v. United States

• Decision Date: 10 September 1918
• Docket Number: 3098.
• Citation: 253 F. 417
• Parties: SIDEBOTHAM et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

253 F. 417

SIDEBOTHAM et al. v. UNITED STATES.

No. 3098.

United States Court of Appeals, Ninth Circuit.

September 10, 1918

Rehearing Denied Oct. 14, 1918.

Wellington D. Rankin, of Helena, Mont., for plaintiffs in error.

B. K Wheeler, U.S. Atty., James H. Baldwin, Asst. U.S. Atty., both of Butte, Mont., and Homer G. Murphy, Asst. U.S. Atty., of Helena, Mont.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge.

The indictment in the court below contained 11 counts. Ten counts, numbered 1 to 10, inclusive, charged the plaintiffs in error and 13 other defendants with the offense of devising a scheme and artifice to defraud certain persons by false and fraudulent representations and pretenses in the sale of certain shares of stock of the Northwestern Trustee Company a corporation organized under the laws of the state of Montana; that having devised the scheme and artifice to defraud, and for the purpose of carrying the scheme and artifice into execution, the defendants deposited in a post office of the United States certain letters concerning the stock of the Northwestern Trustee Company, the letters being addressed to the persons intended to be defrauded by the scheme and artifice, in violation of section 215 of the Penal Code of the United States. Act March 4, 1909, c. 321, 35 Stat. 1130 (Comp. St. 1916, Sec. 10385). The eleventh count charged the defendants with the offense of having conspired together in violation of section 37 of the Penal Code (Comp St. 1916, Sec. 10201) to commit the offenses described in the other counts.

It is assigned as error that the court erred in denying the motion of the plaintiffs in error requiring the United States attorney to elect between the eleventh count and the other counts of the indictment on the ground of duplicity. The trial of the case was commenced on January 10, 1917, and the verdict of the jury was rendered on January 27, 1917. This motion was made on January 24, 1917, and after the case had been on trial on all the counts for two weeks. On the same day the court directed the jury to return a verdict for the defendants on counts numbered 1, 2, 3, and 4, and later the court instructed the jury to acquit the defendants on counts numbered 5 and 6. The case was finally submitted to the jury on counts numbered 6, 7, 8, 9, and 11. No objection had been interposed on behalf of the defendants to the introduction of testimony in support of all the counts of the indictment, and no objection was made at the beginning of the trial, or at any time, that the defendants would be or were embarrassed in their defense by this procedure. The objection now interposed is that the indictment is duplicitous, not that the plaintiffs in error were embarrassed in their defense.

The scheme and device to defraud as charged in the indictment, and the conspiracy to commit that offense, grew out of the same transaction, and were so connected together that the evidence to sustain one charge was evidence in support of the other charges, except to establish the conspiracy count, it was necessary to prove the conspiracy. Such charges may be joined under the provisions of section No. 1024 of the Revised Statute (Comp. St. 1916, 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.'

The case of Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208, is cited by the plaintiffs in error in support of their objection that the conspiracy charged cannot be joined in the same indictment with the charge to commit the offense which is the object of the conspiracy. The Supreme Court did not so hold. In that case the indictment contained four counts:

'In the first count it was charged that the defendant, on the 25th of December, 1891, at the Choctaw Nation, in the Indian country, within the above district, did, with an ax, feloniously, willfully, and of his malice aforethought, 'strike, cut, penetrate, and wound' upon the head one Samuel E. Vandiveer, a white man, and not an Indian, inflicting thereby a mortal wound, * * * the same offense, and differed from the first only in using the words 'beat, bruise,' in place of 'cut, penetrate.' In the third count the defendant was charged, in the words of the first count, with having, in the same manner, on the 25th of December, 1891, feloniously, willfully, and of his malice aforethought, at the Choctaw Nation, in the Indian country, within the same district, killed and murdered one William D. Bolding, a white man, and not an Indian. The fourth count differed from the third only as the second count differed from the first.'

The defendant moved to quash the indictment upon various grounds one of which was that it charged two distinct felonies. The motion was overruled. Before the case was opened to the jury for the government, the defendant moved that the district attorney be required to elect on which count of the indictment he would claim a conviction. That motion having been overruled, he was required to go to trial upon all of the counts. Upon the conclusion of the evidence, the defendant renewed the motion that the government be required to elect upon which count of the indictment it would prosecute him. This motion was overruled. The jury found the defendant guilty upon the first and third count of the indictment. Upon writ of error to the Supreme Court of the United States, the judgment of the trial court was affirmed. In the opinion of the court, after referring to the rule established by authorities:...