commit several distinct offenses,10 nor the performance of several acts to accomplish the same result; 11 nor the performance of a single act which has several objects, all of which the count describes, 12 or which has several characteristics, 13 each of which make it criminal under the same statute, or the description of which discloses a crime under a different statute; nor, it has been held, several contemporaneous acts, which constitute one transaction, forbidden by the same statute, although each of them might be the foundation of a separate count.15

14

A count charging the introduction of intoxicating liquors into "Indian territory" together with their introduction into the "Indian country"; 16 a count charging the carriage of intoxicating liquor into the "Indian country" from without the "Indian country" and from without the State of Oklahoma; 17 a count. charging defendant with conspiracy to evade the payment of the Federal tax upon persons engaged in the liquor trade and also with conspiracy to violate the statute prohibiting shipments of C. O. D. and the collection of purchase price by carriers; 18 are each of them bad for duplicity.19 It has been held to be duplicitous to charge in a single count as part of a conspiracy to corrupt voters at an election of a representative in Congress, charges of corruption of voters to influence votes for State offices.20 A count is bad for duplicity which alleges that on a certain day, and on each and every secular day between the end of that month and a specified day more than two months later, the defendant deposited in a specified post-office, to be sent by mail, five hundred printed circulars concerning a lottery, duly addressed and postpaid, directed to divers persons beyond the limits of the district.21

10 John Gund Brewing Co. v. U. S., C. C. A., 206 Fed. 386.

11 Connors v. U. S., 158 U. S. 408, 39 L. ed. 1033; Crain v. U. S., 162 U. S. 625, 40 L. ed. 1097.

12 U. S. v. Patty, 2 Fed. 664; Clark v. U. S., C. C. A., 211 Fed. 916.

13 Burton v. U. S., C. C. A., 142 Fed. 57.

14 Miller v. U. S., C. C. A., 133 Fed. 337, 341.

15 U. S. v. Patty, 2 Fed. 664; U. S. v. Heinze, 161 Fed. 425; Clark v. U. S., C. C. A., 211 Fed. 916.

16 Ammerman v. U. S., C. C. A., 216 Fed. 326. 17 Ibid.

18 Lewellen v. U. S., C. C. A., 223 Fed. 18.

19 John Gund Brewing Co. v. U. S., C. C. A., 204 Fed. 17.

20 U. S. v. Gradwell, 234 Fed. 446. 21 U. S. v. Patty, 2 Fed. 664.

A count is not bad for duplicity which charges that on the same day defendant deposited in the post-office, to be sent by mail, a number of circulars concerning the same matter; 22 nor a number of the same obscene books; 23 although each of these was separately addressed to a different person, which charges that defendant did "make, counterfeit, forge and cause to be made, counterfeited, and forged, a certain affidavit," &c., for the purpose of defrauding the United States; 24 nor one, that defendant procured a false affidavit to be presented to the pension office in a pension case; 25 nor, under the White Slave Traffic Act,26 a count that two women were transported at the same time, for the same immoral purposes, from one State into another, 27 nor a count which charges several offenses under the same statute but limits them to a single act.28 Nor a count charging that the defendant made illegal purchases from the Quartermasters Department during certain months.29

When an indictment sufficiently charges, a count to commit an offense penalized by statute, and also avers, that the conspiracy was to defraud the United States without any specification of the fraud, the latter averment should be disregarded as surplusage and such count should not be duplicitous.30 It has been held that a person accused of violating the civil service law 31 by receiving or soliciting contributions for political pur

22 Ibid.

23 Clark v. U. S., C. C. A., 211 Fed. 916.

24 Crain v. U. S., 162 U. S. 625, 40 L. ed. 1097. See U. S. v. Hall, 14 Fed. 324.

25 U. S. v. Hansee, 79 Fed. 303. 26 Act of June 25, 1910, ch. 395, 36 St. at L. 825.

27 U. S. v. Westman, 182 Fed. 1017.

28 U. S. v. Bopp, 237 Fed. 283. Counts of an indictment charging that defendants "did knowingly receive, conceal, and facilitate the transportation and concealment of opium prepared for smok

ing; that is to say, the said defendants did . . . take the said opium prepared for smoking in an automobile to a certain point, and then and there did secrete and hide the said opium'' was, since, if the receiving, concealing, and facilitating the transportation and concealment constituted separate crimes, the general words were qualified and limited by what followed.

29 Eisenberg v. U. S., C. C. A., 261 Fed. 598.

30 Sugar v. U. S., C. C. A., 252 Fed. 79, affirming U. S. v. Sugar, 243 Fed. 423.

31 Act of January 16, 1883, § 11, 22 St. at L. 403.

32

poses from employees in the Internal Revenue, may be charged in a single count, when the offense was committed by a single act or series of acts at the same time and place." It has been held that a count in an indictment charging a person with seizing, carrying away and secreting a ballot box, aiding and assisting in the seizure, carrying away and secretion of the same, and counseling, advising and procuring the seizure, carrying away and secreting thereof, was not bad for duplicity, the objection being not made until after verdict; since it charged but a single offense, the unlawful interference with the officers of the election in the discharge of their duties; 33 and that a denial of a motion to require a more restricted or specific statement of the particular mode in which the defense charged was committed would not justify a reversal, unless it appeared that the substantial rights of the accused were prejudiced.34

A duplicity in the indictment is no ground for a motion in arrest of judgment.85 Nor is it raised by a general demurrer.36 It has been said that it should be raised by a motion to elect.37 The objection is waived by going to trial without objection.38 The subject of duplicity in indictments under the national banking laws is subsequently discussed.39

The defect of duplicity cannot be cured by striking out part of the duplex count,40 nor by entering a nolle pros upon part thereof.41

§ 501. Joinder of counts. By the Revised Statutes, "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 indict

32 U. S. v. Scott, 74 Fed. 213.

33 Connors v. U. S., 158 U. S. 408, 39 L. ed. 1033.

34 Connors v. U. S., 158 U. S. 408, 39 L. ed. 1033.

35 Pooler v. U. S., C. C. A., 127 Fed. 509, 62 C. C. A. 307; Wells v. U. S., C. C. A., 257 Fed. 605.

36 Pooler v. U. S., C. C. A., 127 Fed. 509, 515.

37 U. S. v. Louisville & N. R. Co., 165 Fed. 936, § 41; infra, § 503. 38 Lemon v. U. S., C. C. A., 164 Fed. 953.

39 Infra, § 506.

40 U. S. v. Dembowski, 252 Fed. 894.

41 Ibid.

ments are found in such cases, the court may order them to be consolidated."'1

This authorizes the consolidation of indictments against several defendants. Under this section distinct offenses, which arise out of the same transaction, although committed at different times, and although some are felonies and others misdemeanors 6 may be joined in one indictment; but not if the felonies are capital offenses.7 Counts may be joined for committing a crime and for aiding and abetting in the commitment thereof; for committing a misdemeanor and conspiring to commit it. It has been held that the following counts may be joined in the same indictment: Charges of felonies and misdemeanors forbidden by the same section of the Revised Statutes; thereamongst, that in relation to stamps upon cigar boxes,10 that forbidding the use of the mails in furtherance of a lottery; a charge of sending non-mailable matter in the form of a closed and directed letter and also of depositing in the mail an envelope on which non-mailable matter was written, both acts being directed against the same person; 12 of depositing with an ex

$501. 1 U. S. R. S., § 1024. "If it is suggested that thirty-two different transactions, each alike obnoxious under this penal statute, should not be accumulated upon the head of the offender at one time, it can be answered that the law-making power has taken a different view on that subject. It can, however, also be answered, both on reason and on authority, that it would manifestly be far more oppressive to the offender to torture him with thirty-two consecutive trials on thirty-two separate indictments than to combine them as the statute permits, and subject him to only one trial.'' Gardes v. U. S., C. C. A., 87 Fed. 172, 174, 175, per McCormick, C. J.

2 Emanuel v. U. S., C. C. A., 196 Fed. 317. See infra, § 504.

3 Re Lange, 13 Blatchf. 546; U. S. v. Mills, 15 Int. Rev. Rec. 18; U.

11

S. v. Peterson, 1 W. & M. 305; U. S. v. Stetson, 3 W. & M. 164; U. S. v. Burns, 5 McLean, 23; and authorities cited infra. See infra, § 504. 4 U. S. v. Jacoby, 12 Blatchf. 491; and authorities cited infra, § 505.

5 U. S. v. Wentworth, 11 Fed. 52; and authorities cited infra, § 505. 6 U. S. v. Ridgway, 199 Fed. 286; Phillips v. U. S., C. C. A., 264 Fed. 657.

7 U. S. v. Sharp, Peters C. C. 131. 8 Rooney v. U. S., C. C. A., 203 Fed. 928.

9 U. S. v. Davis, 103 Fed. 57; Steigman v. U. S., C. C. A., 220 Fed. 63.

10 U. S. R. S., § 3397.

11 U. S. v. Jacoby, 12 Blatchf. 491; U. S. R. S., § 1024; U. S. v. Ridgway, 199 Fed. 286; Glass v. U. S., C. C. A., 222 Fed. 773.

12 U. S. v. Davidson, 244 Fed. 523.

press company for transportation several copies of the same obscene book; 13 of violations of the oleomargarine laws; 14 of charges of embezzlement by the same officer,15 or employees, 16 different violations of the Act of Dec. 17, 1914, forbidding the importation the manufacture and the sale of opium or coca or any compound derivative or preparation thereof; 17 a charge of a crime with a charge of inciting such crime, 18 or of a conspiracy to commit it, or relating to the same transactions; 19 such as two murders, committed at the same place on the same day with the same instrument,20 riot and assault and battery,21 simultaneous burglary and larceny.22

24

The joinder of distinct felonies and also of felonies of different grades, which are connected together,23 charges of offenses which have different punishments, bigamy and adultery charged as committed on the same day with the same woman,25 charges of having counterfeit money in the defendant's possession at different times within a short period of time,26 a count for counterfeiting money and aiding and assisting others in so doing, with another alleging that he caused and procured others so to do.27 The charge of feloniously taking gold metal from the mint with that of the felonious taking and embezzlement of metals at the mint, committed to the defendant's charge. 28 Charges of the transmission of several false papers to the pension office upon an application for bounty land; 29 but it was held these cannot

13 Clark v. U. S., C. C. A., 211 Fed. 916.

14 Kreuzer v. U. S., 254 Fed. 34. 15 Foster v. U. S., C. C. A., 256 Fed. 207.

16 U. S. v. Brent, 17 Int. Rev. Rec.

17 Ch. 1, § 1, 38 St. at L. 185; Wallace v. U. S., C. C. A., 243 Fed. 300.

18 U. S. v. Peterson, 1 W. & M. 305.

19 U. S. v. Dickinson, 2 McLean, 325; U. S. v. Spintz, 18 Fed. 377. 20 Pointer v. U. S., 151 U. S. 396,

14 Sup. Ct. 410, 38 L. ed. 208.

21 U. S. v. McFarlane, 1 Cranch C. C. 163.

22 Ex parte Peters, 12 Fed. 461 (2 McCrary, 403); Morris v. U. S., C. C. A., 229 Fed. 516.

23 U. S. v. Bickford, 4 Blatchf. 337.

24 U. S. v. Bennett, 17 Blatchf. 357 (offenses under U. S. R. S., § 5431, with those under § 5434). 25 U. S. v. West, 7 Utah, 437. 26 U. S. v. Howell, 65 Fed. 402 (between the dates May 21st and June 22d of the same year).

27 U. S. v. Burns, 5 McLean 23. 28 U. S. v. Jones, 69 Fed. 973. 29 U. S. v. Bickford, 4 Blatchf. 337.