Zedd v. United States

• Decision Date: 13 January 1926
• Docket Number: No. 2433.,2433.
• Citation: 11 F.2d 96
• Parties: ZEDD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

11 F.2d 96 (1926)

ZEDD et al. v. UNITED STATES.

No. 2433.

Circuit Court of Appeals, Fourth Circuit.

January 13, 1926.

James G. Martin and Herman A. Sacks, both of Norfolk, Va., for plaintiffs in error.

Alvah H. Martin, Asst. U. S. Atty., of Norfolk, Va. (Paul W. Kear, U. S. Atty., of Norfolk, Va., on the brief), for the United States.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

ROSE, Circuit Judge.

The plaintiffs in error were defendants below and will be so styled here. Two of them, Joe and Mollie Zedd, are husband and wife; the third, Kizzie Reeves, is a woman who was on the Zedd premises when they were visited by the federal officers. Three informations were exhibited, one against each of the defendants. That against the man had four counts, each of the others two. The charges against him had to do with two lots of whisky, one of one pint and the other of three gallons and three pints, each of which he was said to have possessed and sold, the former on the 13th of January, 1925, and the latter on the 17th of the same month. Three gallons and three pints were also alleged to have been the quantity possessed and sold by his wife on the same 17th of January, which was also the date upon which Kizzie Reeves was charged with having sold and possessed a half a pint.

All the defendants were convicted. It will be unnecessary for us to consider more than one of their assignments of error. The court below, against their objection, directed that the charges against all of them should be submitted to the same jury and tried together at one time, although separate verdicts were to be returned and in fact were. The government says this order was authorized by each of two sections of the Revised Statutes, viz., those numbered No. 921 and No. 1024, respectively (Comp. St. §§ 1547, 1690). The former is a codification of section 3 of the Act of July 22, 1813, 3 Stat. 21; the latter of a provision of the Act of February 26, 1853, 10 Stat. 161, regulating fees and costs, so that one of them has been in force for 112 and the other for 72 years. The earlier act, so far as our examination of the reported cases goes, has never before been invoked to sustain either the consolidation or the trying together of separate indictments or informations against different defendants over the objection of either or any of them. There are three instances in which the right of the court, under section 1024, to order a consolidation of such indictments has been in question. In two of them, the consolidation was proposed or was made against the consent of the accused, and in the third without the latter's having interposed any objection. In the last-mentioned case, which was also in point of time the latest of the three, it was said that while it might be assumed that the making of the order if seasonably objected to would have been reversible error, the silence of the defendants in the court below had waived their right to complain in that above. Goldberg v. United States, 280 F. 89 (C. C. A. 5th Cir.) Of the two in which the defendants did object, the first was tried in the Circuit Court for the Northern District of California in 1856, only three years after the enactment of what is now known as section 1024. It was there held that it did not justify the consolidation of separate indictments against different defendants, although their offense was joint and they might have been jointly indicted for it. United States v. Durkee, Fed. Cas. No. 15008. Forty years later the second came before the Supreme Court, which disposed of the precise question before it by the statement: "It is clear that the statute does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged with a crime different from that for which all are tried." McElroy v. United States, 17 S. Ct. 31, 32, 164 U. S. 76, 80 (41 L. Ed. 355). The italics are ours.

In none of these cases, so far as the reports show, did anybody concerned suggest that what is now known as section 921 gave the power to do what section 1024 did not authorize, although the former says that the court may direct consolidations "when it appears reasonable to do so." It is possible that it was not thought of because the Act of 1813 was supposed to have relation to civil rather than to criminal practice, a notion which is not without plausibility in view of its other provisions and the purposes which it was intended to serve as they are stated in Mutual Life Insurance Co. v. Hillmon, 12 S. Ct. 909, 145 U. S. 285, 292, 36 L. Ed. 706. Its language is, however, broad, and some of the federal courts have without discussion assumed that it was applicable to criminal as well as to civil trials. Betts v. United States, 132 F. 228, 65 C. C. A. 452. On the other hand, according to the decided cases, important practical differences may depend upon whether a consolidation is ordered under the authority of one section rather than the other. When section 921 is invoked, the parties in selecting the jury are severally entitled to a number of peremptory challenges equal to the aggregate they would have possessed had the trials been separately...