Stokes v. United States, 8609.
| Decision Date | 04 January 1938 |
| Docket Number | No. 8609.,8609. |
| Parties | STOKES et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Clint W. Hager, of Atlanta, Ga., and Hamilton Burch, of Valdosta, Ga., for appellants.
T. Hoyt Davis, U. S. Atty., and H. G. Rawls, Asst. U. S. Atty., both of Macon, Ga.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
Appellants were prosecuted under an indictment charging in count 1, that on the 8th day of May, 1937, "One Stokes and one Olson did unlawfully, wilfully and knowingly possess distilled spirits, etc.," and in count 2 that on the same day, "One Stokes and One Olson did unlawfully transport distilled spirits."
On the ground that the evidence did not sufficiently connect Olson with the offense charged in the first count, or Stokes with that charged in the second count, the District Attorney moved at its close that a verdict be directed as to Olson on the first count, and as to Stokes on the second, and the motion was granted. Thereupon Stokes as to count 1, Olson as to count 2, moved for a directed verdict on the ground that with Olson dismissed from the first count, and Stokes from the second, there was a fatal misjoinder of parties and offenses. This motion was overruled, and Stokes was convicted on count 1; Olson on count 2. Thereafter, a motion in arrest of judgment, that there was a fatal misjoinder of parties and offenses, was presented and overruled. This appeal tests whether there was reversible error in either of these rulings.
It must be conceded that it is not good practice to charge separate defendants with separate offenses in the same indictment, and that a defendant so charged may, by timely motion, compel an election, secure a severance, or obtain some other relief appropriate to the end desired; a separate trial. It may be conceded, too, that where it is made to appear that a defendant, who has timely moved to protect himself from the consequences of such misjoinder, has suffered prejudice from it, a verdict against him should be set aside for reversible error. DeLuca v. United States, 2 Cir., 299 F. 741.
The indictment charging both defendants with being guilty of offenses which could properly be joined in the same indictment, 18 U.S.C.A. § 557; Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Sasser v. United States, 5 Cir., 29 F.2d 76, was good on its face and subject to no exception. The fact, standing alone and of itself, that one of the defendants was acquitted on each count, and only one was convicted on each, does not show that there was prejudicial misjoinder in charging both of the defendants in each of the counts. Sasser v. United States, supra; Chapman v. United States, 5 Cir., 10 F.2d 124. Appellants show no actual prejudice from the action taken here. No statement of facts is brought up in the record, and it must therefore be assumed that the evidence fully...
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