United States v. Mullen, 8938.

• Decision Date: 29 June 1925
• Docket Number: No. 8938.,8938.
• Citation: 7 F.2d 244
• Parties: UNITED STATES v. MULLEN.
• Court: U.S. District Court — Eastern District of Louisiana

7 F.2d 244 (1925)

UNITED STATES v. MULLEN.

No. 8938.

District Court, E. D. Louisiana, New Orleans Division.

June 29, 1925.

A. A. de la Houssaye, of New Orleans, La., for plaintiff.

H. M. Wilkinson, of New Orleans, La., for defendant.

BEATTIE, District Judge.

Reasons for overruling motions to quash, for new trial, and in arrest of judgment.

The motions were based principally upon an alleged misjoinder of offenses, misjoinder of defendants, and duplicity. The other grounds of the motions are dependent upon or connected with those above mentioned. The general rule of law, as laid down by section 1024 of the Revised Statutes (Comp. St. § 1690), is: "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."

In Hartman v. U. S., 168 F. 30, 94 C. C. A. 124, it was held substantially that the government cannot be required to elect between counts of an indictment which charge misdemeanors of the same class, although under some of the counts the punishment may be imprisonment in the penitentiary; that under this section such counts may be joined and tried together.

There is a special provision in the National Prohibition Act on this subject. It is title 2, § 32 (Comp. St. Ann. Supp. 1923, § 10138½s) and reads as follows: "In any affidavit, information, or indictment for the violation of this Act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed."

Clearly, I think, under the law, and especially under the National Prohibition Act, there can be no objection to the joinder, as in this case, of separate offenses in the same indictment in separate counts. But objection is urged on this ground, particularly for the reason that, as against one of the original defendants in that case (who is now no longer in the case because, by a directed verdict, he was acquitted and his case was never submitted to the jury for a decision), it was alleged that the offense charged in this indictment constituted a second offense against the National Prohibition Act by that defendant.

Section 29 of title 2 of the act (section 10138½p) requires the prosecuting officer to ascertain whether the defendant has been previously convicted, and to plead the prior conviction in the indictment. Notwithstanding this requirement of section 29, there appears the subsequent authority, under section 32, just quoted, to join separate offenses in separate counts of the same indictment. Congress evidently intended that this should be done, even though as to one of the counts and as to one of the defendants the offense was a second offense.

While under the technical definitions of misdemeanors and felonies under the Criminal Code (35 Stat. 1088) the first offense is a misdemeanor and the second offense is a felony, yet, even if there were no special authority for joining different offenses in separate counts under section 32, I do not think that this distinction between misdemeanors and felonies, based entirely upon the amount of punishment, makes the offenses or acts different classes of crimes or offenses, as referred to in R. S. § 1024, where it is provided that several charges for two or more acts or transactions of the same class of crimes or offenses may be properly joined in separate counts. The distinction between misdemeanors and felonies at common law and in the United States at the time of the adoption of section 1024 was entirely different from that distinction as it exists under the Code, which makes the amount of punishment alone the distinguishing line of demarcation between misdemeanors and felonies.

One sale of intoxicating liquor contrary to law is certainly the same class of crime as another sale of intoxicating liquor, though for the first offense the punishment may be such as to make the crime a misdemeanor, and for the second offense a felony.

One offense of possessing liquor contrary to law is, I think, the same class of offense as a sale of liquor contrary to law, and they may be charged in separate counts of the same indictment, though in the case of the one offense it may be a first offense and a misdemeanor, and in the case of the other offense it may be a second offense and a felony — the distinguishing line of demarcation being only the amount of punishment.

For these reasons, and, even if we are controlled by R. S. § 1024, instead of section 32 of the act, first and second offenses against the same act, though one may be a misdemeanor and the other a felony, can be charged in separate counts of the same indictment.

As to the misjoinder of defendants, there is no merit, unless it be, as contended, because against one, the charge is of a second offense, and against the other, of a first offense, though against the same act. If such defendants, guilty of a joint commission of a crime — the one as a first offender, and the other as a second offender — cannot be joined in the same indictment, it means a large increase in the number of indictments, and of trials necessary to enforce the law.

The policy of the law is certainly to join all parties, who jointly commit an offense, in the same indictment as joint offenders. Recently the Judicial Conference, held by virtue of a statute of the United States, commented upon the practice of charging against two offenders conspiracy to violate a law, instead of charging...