United States v. Silverman, 6994

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation106 F.2d 750
Docket NumberNo. 6994,6995.,6994
Decision Date07 September 1939

106 F.2d 750 (1939)


Nos. 6994, 6995.

Circuit Court of Appeals, Third Circuit.

September 7, 1939.

Leonard L. Kimball, of Pittsburgh, Pa., for appellant.

Charles F. Uhl, U. S. Atty., and George Mashank, Asst. U. S. Atty., both of Pittsburgh, Pa.

106 F.2d 751

Before BIGGS, CLARK, and BUFFINGTON, Circuit Judges.

CLARK, Circuit Judge.

In the famous "Tea Suits", before Mr. Justice Washington, the prosecution attempted, albeit unsuccessfully, to file one thousand separate libels against each of one thousand chests of allegedly smuggled tea. Wharton, Criminal Practice and Pleading Sec. 294. A desire to remove the temptations which gave rise to redundancies such as this, led, we are told, to the passage in 1853 of "An Act to Regulate the Fees and Costs to be allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, and for other Purposes", Act Feb. 26, 1853, 10 Stat. 161; and see Summers v. U. S., 231 U.S. 92, 104, 105, 34 S.Ct. 38, 58 L.Ed. 137. A surviving fragment of that statute governs the case at bar. It reads: "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." 18 U.S.C. A. § 557.

Appellant, however, feels that this statutory solicitude for the public purse (and incidentally the accused's pocketbook) is carried too far in his case. He fastens upon the other horn of the dilemma, prejudice in the eyes of a jury. He was twice indicted: First, on two counts, for suborning one John Doe to commit perjury on June 30 and on July 17, 1937; second also on two counts, for perjuring himself on October 8, and on November 15, 1937. The four perjuries are all of the same type — false bail bond affidavits — although each rerelates to a different criminal proceeding. In one indictment the affiant impersonates the real owner of the offered property and the defendant member of the bar suborns him to do so. In the other, the defendant offers his own property but understates the amount of the mortgage covering it. At the commencement of the trial appellant attacked the consolidation of the two indictments with a motion for severance. It was denied, and he was convicted and sentenced on both. The sentences, however, were imposed concurrently.

We observe at the outset that the indictments are not directed, and give no indication of being directed, to "connected transactions". That being so, the three cases the district attorney has seen fit to cite us are clearly beside the point. The principle upon which they are rested has been expressed with both scholastic exactitude and judicial aptness:

"The practical expediency of a single trial for offenses so concatenated that the witnesses to each are identical should outweigh a bare possibility of prejudice." 48 Harvard Law Review 510 (note).

"Cannot the king call a man to account for a breach of the peace because he broke two heads instead of one?" Lord Mansfield in R. v. Benfield, 2 Bur. 980.

Our inquiry, then, must be under the third clause of the statute. Are the separate crimes charged "of the same class", and may they be "properly joined"?

Perjury and its subornation have been defined and considered as part and parcel of the same offence. 3 Coke Institutes 167; 2 Bishop Criminal Law, Secs. 1056, 1197. They were treated as such by the Congress in the Act of April 3, 1790, Ch. 9, Sec. 18, 1 Stat. 116. Their separation into two cognate sections in subsequent revisions of this original statute, 18 U.S.C.A. §§ 231, 232, hardly imports a difference in substance. Any general distinction between perpetration and procurement (cf. "suborn — to prepare, provide or procure, especially in a secret or underhand manner", 2 New Century Dictionary p. 1882) no longer obtains. 18 U.S.C.A. § 550; and see Ruthenberg v. United States, 245 U.S. 480, 483, 38 S.Ct. 168, 62 L.Ed. 414. Indeed, the only reason for setting subornation of perjury apart from perjury seems to lie in an archaic and for our purposes negligible differential in the method of proof. 2 Bishop Criminal Law 1198. In the eighteenth century a conviction for perjury on the testimony of less than two witnesses came to be considered an impossibility due to the metaphysical equipoise, of "oath against oath". Wigmore, Required Number of Witnesses; A Brief History of the Numerical System in England, 15 Harvard Law Review 85, 106-108. This rule has since been relaxed so as to permit conviction on the corroborated testimony of one

106 F.2d 752
witness. On the other hand, subornation of perjury, which involves no clash of oath against oath (except perhaps with respect to the falsity of the suborned assertion) has been held to be properly...

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14 cases
  • United States v. Antonelli Fireworks Co., 192.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Mayo 1946
    ...v. United States, 1 Cir., 90 F.2d 243, certiorari denied 302 U.S. 705, 58 S.Ct. 25, 82 L.Ed. 544; United States v. Silverman, 3 Cir., 106 F.2d 750. We can find no abuse of discretion, but rather a wise employment of judicial economy, in the consolidation ordered here. And the joint trial wa......
  • United States v. Perlstein, 7507
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 24 Abril 1941
    ...the court may refuse to direct an election by the government. It is, as this court pointed out in United States v. Silverman, 3 Cir., 106 F.2d 750, a choice between the economy of a single trial of issues which are closely related, on the one hand, and the safeguarding of the defendant from......
  • State v. Manney, s. A--88
    • United States
    • United States State Supreme Court (New Jersey)
    • 31 Marzo 1958
    ...of the joinder of offenses or of defendants. As we have said, joinder of offenses has some potential of harm. United States v. Silverman, 106 F.2d 750 (3 Cir., 1939). Multiple charges may suggest propensity for crime, and there is the possibility that proof as to one offense will enter into......
  • Travillion v. United States, Civil Action No. 10-903
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 29 Octubre 2012
    ...the circumstances of each individual case, with one consideration being the number of additional charges. See United States v. Silverman, 106 F.2d 750, 753 (3d Cir. 1939) (holding that where additional charge was not a significantly more egregious offense, and was the only additional offens......
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