United States v. Byrne

44 F. 188, 1890 U.S. Dist. LEXIS 20

• Court: District Court, E.D. Missouri
• Decided: December 9, 1890
• Status: Published

Opinion

Thayer, J.

In both counts of the indictment it is averred, in substance, that the defendant “feloniously secreted, embezzled, and destroyed” the letter therein described, and “feloniously stole and took out of said letter” the articles of value therein contained, to-wit, treasury notes and silver certificates. It may be conceded that under the provisions of section 5467, on which this indictment is framed, “embezzling a letter” and “stealing its contents,” are separate offenses, and may bo charged as such. Vide U. S. v. Taylor, 1 Hughes, (U. S.) 514; U. S. v. Harmison, 8 Sawy. 556; and U. S. v. Falkenhainer, 21 Fed. Rep. 624. It may he further conceded that it is a fundamental rule of criminal pleading that two offenses should not be alleged in the same count, and that a count is ordinarily defective in which more than one offense is alleged. Still the court is of the opinion that the present indictment cannot be successfully attacked on the ground of duplicity in the several counts. There seems to be a well-defined exception to the rule of pleading above stated to the following effect: When two acts, capable of being counted upon as distinct offenses, are committed by the same person, at the same time, so that they may together be regarded as a single continuous act, it is optional with the pleader to count upon them separately as distinct offenses, or to state the whole transaction in a single count as constituting a, single offense, provided both ofienses are of the same grade, and the punishment for each is the same. If the latter method of stating the offense is adopted, but a single penalty can be imposed. In Com. v. Tuck, 20 Pick. 356, the indictment charged in one and the same count that the defendant “broke info a shop with intent to steal,” which was a felony, and ihat “he did then and there steal,” which was likewise a felony. The court held that the count was not bad for duplicity. So in the case of Hinkle v. Com., 4 Dana, 518, an indictment charged the defendant in one and the same count with “setting up a gaming table,” and “keeping a gaming table and inducing others to bet thereat,” — both of which were independent offenses. The court held the count good, saying, in sub-sfance. that, as they were co-operating acts constituting altogether one offense, when committed by the same person at the same time, an indictment for the combined act might properly charge the whole transaction in owe count, and but one punishment could then he inflicted. The case at bar falls within the principle of these decisions. The indictment alleges that the defendant secreted anti embezzled a letter, and stole its contents. The acts in question are alleged as having been committed at the same time, and as together constituting a single act or transaction. The two offenses are of the same grade, and the punishment of each is the same. The defendant is none the less guilty of embezzlement of the letter, because he stoic its contents, and vice versa. In other words, the two allegations contained in the counts are neither inconsistent or uncertain. Under the circumstances, if the government secs fit to plead as it has done, thereby making one offense out of a transaction that it might have broken up into two, it is, in my judgment, entitled to do so, and the defendant has no just cause for complaint. The objection that the allegations of the indictment are repugnant, “because it is first alleged that the letter and its cofitents were destroyed, and is subsequently alleged that the contents were embezzled and stolen,” seems to be founded on a misconception of what is averred. The indictment.does not aver that the contents of the letter were destroyed. It avers that the letter was secreted, embezzled, and destroyed, and that the contents — to-wit, treasury notes and silver certificates — were stolen. So far as I can see the averments are not repugnant, and the 'demurrer must be overruled. It is so ordered.