41 App. D.C. 52
D.C. Cir.
1913
Mr. Justice Robb

delivered the opinion of the Court:

We will first consider the question whether the trial court was possessed with jurisdiction over the case when it entered the orders forming the basis of this assignment of error. Under the great weight of aiithority, we think it clear that, at common law, power to suspend sentence after conviction was inherent in all superior courts of criminal jurisdiction. In Com. v. Dowdican, 115 Mass. 133, Chief Justice Gray, speaking for the court, said: “It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal caso, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose; that the indictment be laid on file, and this practice has been recognized by statute. * * * Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court; but is a mere suspénding of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time, *58upon the motion of either party, to bring the case forward and pass any lawful order of judgment therein.” In State v. Addy, 43 N. J. L. 113, 39 Am. Rep. 547, the court observed that the practice of- suspending sentence in criminal cases had long been in vogue in that as well as other States. In People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 23 L.E.R. 856, 36 N. E. 386, 15 Am. Crim. Rep. 675, the court said: “Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts, and numerous adjudged cases.” In State v. Crook, 115 N. C. 760, 29 L.R.A. 260, 20 S. E. 513, it was observed that “such orders are not prejudicial but favorable to defendants, in that punishment is postponed with the possibility of escaping it altogether; and it is presumed that the party adjudged guilty is present and assenting to, if not asking for, such orders.” See also Webster v. State, 43 Ohio St. 696, 4 N. E. 92; Fults v. State, 2 Sneed, 232; People v. Patrich, 118 Cal. 332, 50 Pac. 425; People v. Walker, 6 Gal. Unrep. 470, 61 Pac. 800; People v. Graves, 31 Hun, 382; Sylvester v. State, 65 N. H. 193, 20 Atl. 954; Weber v. State, 58 Ohio St. 616, 41 L.R.A. 472, 51 N. E. 116; Gibson v. State, 68 Miss. 241, 8 So. 329; Ex parte Williams, 26 Fla. 310, 8 So. 425; People v. Reilly, 53 Mich. 260, 18 N. E. 849. We think, however, that our decision upon this point in the present case may be rested upon the rule of the court below, under which it is apparent the court’s •action was taken. That rule specifically provides that each term shall, as to any particular cause, be continued until the final disposition of any motion seasonably filed therein. That the motion of the government for sentence was seasonably filed is admitted. That further action upon this motion was not contemplated by either the defendant or the government until the disposition of the appeal under the embezzlement indictment in this court is equally uncontrovertible. Had the decision in that case been adverse to the defendant, clearly the court would have been clothed with jurisdiction to impose ■ sentence under *59the book indictment. The continuance of the government’s motion for sentence having been in conformity with the rule of the court, and having been acquiesced in by the defendant, he could not have challenged the court’s jurisdiction to pronounce sentence upon him. Finding itself possessed with jurisdiction over the case, the court was not bound to pronounce sentence. Supposing, after the decision of this court, the defendant had moved the trial court to set aside the verdict under the book indictment. Could it for a moment be contended that that court would have been without jurisdiction to grant such a motion? Clearly not. Final action had not been taken upon the government’s motion for sentence. When, therefore, that motion was overruled, the status of the case was exactly the same as it was upon the day that motion was made, and the court possessed full jurisdiction over it. The rule continues the term until the final disposition of any seasonably filed motion, and, during that time, the court has jurisdiction over the whole case. The formality of entering continuances upon the docket at each term is thus dispensed with. Phillips v. Negley, 117 U. S. 665, 29 L. ed. 1013, 6 Sup. Ct. Rep. 901, to which our attention has been directed by counsel, is not in point. That case deals with the pow'er of a court over a final judgment entered at a prior term. Here, when action was taken, the cause was pending for judgment, or such other action as justice might require.

We do not deem it necessary to consider the question whether the court was possessed of authority, over the objection of the defendant, to set aside the verdict against him, and again place him upon trial. Assuming, arguendo, the court’s lack of authority in the premises, it is clear, we think, that the only injury that could result to the defendant from such action of the court was the further trial of the case. By objecting to the rulings of the court leading up to the new' trial, the defendant laid the foundation for a plea of former jeopardy in the event a retrial should be had. When, therefore, that trial was reached, it was open to him either to raise the question of former' jeopardy, or to take his chances of a favorable verdict at *60the hands of the jury. It is apparent that he chose the latter course, for there is not a suggestion in the record that, from the commencement of the trial to the rendering of the verdict of the jury, the question of former jeopardy was raised. The defendant did, as previously noted, claim twenty peremptory challenges instead of ten, because, as he contended, the two indictments charged offenses of a kind not proper to be included in and set forth in separate counts in the same indictment, but he at no time suggested or tendered an issue as to former jeopardy.

The reason why, in the absence of statutory provision to the contrary, the defense of former jeopardy must be made by special plea, and may not be interposed under the general issue, is plain. As was well said in State v. Buzzell, 58 N. H. 257, 42 Am. Rep. 586: “Former acquittal or former jeopardy, as a defense, is a plea of discharge or release that gives a reason why the defendant ought not to answer the indictment, and ought not to be put upon trial for the crime alleged. 4 331. Com. 335. The plea of not guilty raises the question, not whether, by former acquittal or jeopardy, he is discharged from a crime, but whether he committed it. When, as in this case, there is an opportunity to plead former judgment or jeopardy, and it is not pleaded, the case is as if there were no former judgment or jeopardy.”

In State v. White, 71 Kan. 356, 80 Pac. 589, 6 Ann. Cas. 132, it was held that the immunity from second jeopardy guaranteed by the Constitution is a personal privilege which the accused may waive. That is, that it is a defense which must be seasonably interposed. The court said: “When about to be placed in jeopardy before a second jury, the accused may, if he so desire, take the chances of a favorable verdict.”

In State v. O’Connor, 119 La. 464, 44 So. 265, it was held that the defense of former jeopardy must be specially pleaded, or verdict cannot be set aside by way of motion for a new trial or in arrest of judgment. The court observed that the constitutional guaranty against second jeopardy contemplates that whenever a crime shall have been- committed, a trial shall be *61had according to the methods prescribed by the legislative and judicial branches of the government, and that “when a method is provided which offers to the accused an opportunity to present his defenses, his failure to avail himself of such opportunity is his fault, and not that of the Constitution or those whose duty it is to enforce it.”

.In United States v. Wilson, 7 Pet. 150, 8 L. ed. 640, the precise question before the court was whether a pardon must be specially pleaded. The court, speaking through Chief Justice Marshall, in its statement of the case, said: “After the judgment no subsequent prosecution could be maintained for the same offense, or for any part of it, provided the former conviction was pleaded. Whether it could avail wdthout being pleaded, or in any manner relied on by the prisoner, is substantially the same question with that presented in the second point, which is ‘that the prisoner can, under this conviction, derive no advantage from the pardon without bringing the same judicially before the court, by plea, motion, or otherwise.7 77 The court held that where the benefit of a pardon is to be-obtained through the agency of the court, it must be brought regularly to the notice of that tribunal; otherwise it will not be noticed therein. In other words, the defendant will be presumed to have waived it.

In the dissenting opinion of Mr. Justice Clifford in Coleman v. Tennessee, 97 U. S. 509, 525, 24 L. ed. 1118, 1125, he said: “Argument to show that the defense of a former conviction must be pleaded is quite unnecessary, as the rule at the present day is universally acknowledged; nor is it necessary to enter into much discussion to prove that it will not avail as a defense unless it is well pleaded, as that follows from the antecedent proposition, the rule being that the evidence is not admissible under the general issue.” The opinion of the court in that case rested upon other grounds. See also State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27; State v. Houghton, 45 Or. 110, 75 Pac. 887; Mooring v. State, 129 Ala. 66, 29 So. 664; Daniels v. State, 78 Ga. 98, 6 Am. St. Rep. 238; Com. v. Chesley, 107 Mass. 223; People v. Bennett, 114 Cal. 56, 45 Pac. 1013.

*62In the present case the defendant, having proceeded to trial, verdict, and judgment without ohjection, except as to the consolidation of the two indictments, and without raising the question of former jeopardy, must now be presumed to have waived any question arising out of the action of the court in awarding a new trial or as to former jeopardy; in other words, he is not in a position to urge those questions here.

Under the second assignment of error, the defendant again insists that he was entitled as of right to twenty instead of ten peremptory challenges. This question was fully considered in the last hearing of the case in this court, and a conclusion adverse to the defendant’s contention reached. Miller v. United States, 38 App. D. C. 361, 370, 40 L.R.A.(N.S.) 973. Mr. Justice Van Orsdel, speaking for the court, and after reviewing the question fully, said; “We are here confronted, not by the joining of independent cases for trial under sec. 921, but by a True consolidation’ of two indictments under sec. 1024, with a single defendant, upon charges which properly might have been embraced in separate counts in a single indictment. In this view of the law, it was not error to refuse to grant defendant the statutory number of peremptory challenges for each indictment.” We find nothing in appellant’s brief justifying a re-examination of this question.

It is next urged that the court erred in overruling the defendant’s challenge for cause to a certain juror. During the examination of the panel of jurors upon voir dire, a talesman by the name of Henry Jorg stated that he did not know the defendant or any of his relatives, and that he had no knowledge of the case on trial “excepting the little hit he remembered from reading of it in the papers,” and that he had no opinion as to the guilt or innocence of the defendant. He was then examined by counsel'for. the defendant, and,, among other things, was asked whether what he had read about the case led him to form an opinion, and he replied that it did. After further questioning he was asked whether he did not still entertain that opinion, and replied, “Well, yes.” After further questioning, counsel then asked, “And if yon fake your seat in the jury, box, you *63would still have that opinion?” The juror answered, “Sure.” The court then questioned the juror and elicited the fact that he had served as a juror in other cases, and that he could dispossess himself of the opinion he had, and decide the case upon the evidence as offered by the witnesses. Thereupon counsel for the defendant again took the juror in hand, and, by a series of questions, the witness was lead to about the same conclusion that he had expressed under counsel’s prior examination. The challenge for cause which had heretofore been interposed by the defendant was renewed.

The court thereupon again examined the juror as follows:

Q. Gould you put aside that opinion when you take your seat in the box ?

A. Yes, sir.

Q. Then, if yon could, it would not require evidence to remove it, would it ?

A. No, sir.

Mr. Laskey (counsel for defendant) : The gentleman replies one way to your .Honor, and another way to us.

The witness: It is a different way of putting the question.

The Court: Your questions are rather seductive, Mr. Laskey. I’lie question is, after all, whether this opinion, which is formed fi\ 1‘eading newspapers, — an opinion which almost every man who reads newspapers forms, — whether that opinion is going to embarrass Mm in disposing of tbis case according to the testimony. I will ask him once more.

By the Court: Q. Would the opinion which you have formed from reading the newspapers have any bearing in vour mind upon tbe final decision of tbe question involved in this ease ?

A. No, sir.

Q. Could you dispossess yourself of it ?

A. Yes, sir.

Q. And decide this case upon the evidence introduced in court ?

A. Yes, sir.

Whereupon the court overruled the defendant’s challenge for *64canse, te which ruling the defendant duly noted an exception. It is perfectly apparent to us from the examination of this juror,, that he had formed no such opinion as to the guilt or innocence of this defendant as to disqualify him to sit in the trial of the case. In common with all other intelligent men, men possessing the primary, qualifications of jurors, he had read the newspapers, and that reading had left a somewhat vague impression upon his mind; in other words, it was the same sort of impression that naturally would lodge in the mind of any casual newspaper reader, and fell far short of an opinion upon the merits of the case. Having in mind that the challenge of this juror was based solely upon the admission by him that he remembered the impression which the newspaper accounts had made upon him, his final statement to the court that he could put aside that impression when he took his seat in the jury box, that it would require no evidence to remove it, and that it would have no bearing in his mind upon his final decision of the questions involved in the case, and giving effect to the rule that the discretion of the trial court in the matter of the examination of jurors on their voir dire will not be disturbed unless it is made clearly to appear that, upon the evidence, there was no room for the exercise of discretion by the court, we hold that- the challenge was properly overruled, Howgale v. United States, 7 App. D. C. 217; Horton v. United States, 15 App. D. C. 310; Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; Gallot v. United States, 31 C. C. A. 44, 58 U. S. App. 243, 87 Fed. 446.

In the fourth assignment of error, the defendant contends that no sentence could properly be based upon the book indictment, first, because the statute upon which it is founded is void and of no effect, and, second, because the indictment lacks averments essential to constitute an offense. The statute, sec. 840 of the Code [31 Stat. at L. 1326, chap. 854], reads as follows: “Taking Away or Concealing Writings. — Whoever, with, intent to defraud or injure another person, shall take away or conceal any writing whereby the estate or right of such other person shall or may be defeated,- injured, or altered, shall suffer imprisonment for not more than seven years.” It is urged that, *65because the words, “whereby the estate or right of such other person shall or may be defeated,” etc., are not separated from the preceding words by punctuation, they qualify the word “writing,” and that, if they do, the statute is so ambiguous as to be incapable of being understood. The answer to this contention is simple. The time has long since passed when the failure of the legislature to dot an i, cross a t, or insert a comma, will bo permitted by courts of justice to excuse a violation of the offense which persons of ordinary intelligence would readily understand the statute was intended to reach. United States v. Cella, 37 App. D. C. 423, and cases there cited. By inserting a comma after the word “writing,” no possible objection can possibly be made to the phraseology of this statute; and this we may do. United States v. Lacher, 134 U. S. 624, 33 L. ed. 1080, 10 Sup. Ct. Rep. 625; Crawford v. Burke, 195 U. S. 176, 49 L. ed. 147, 25 Sup. Ct. Rep. 9. Its meaning is so plain that no one can fail to understand it. We therefore forbear further discussion of this part of the assignment. As to the contention that the indictment is lacking in averments essential to constitute an offense under this statute, little need be said, since the question is not discussed in the brief, sole reliance being had upon the reasons set out in the motion in arrest of judgment. 'The indictment clearly sets forth the defendant’s relation to the building association; that certain books of record were required to be kept, and that six carefully described books of record were kept; and that the defendant, on a day named, “unlawfully, wilfully, and with an intent to defraud and inj ure the said association, and the said stockholders and members thereof, did take away and conceal the said books hereinbefore in this indictment particularly described, said books then and there being the writing, records, and property of the said association and its sa id stockholders and members.” These averments were sufficient. 1

The fifth assignment of error relates to the action of the court in permitting to be road to the jury the transcript of the testimony given at the preceding trial !of the case by a witness who died before the last trial. ■ This’assignment is disposed of by the *66case of Mattox v. United States, 156 U. S. 237, 39 L. ed. 409, 15 Sup. Ct. Rep. 337, where it was ruled that the properly verified copy of the reporter’s stenographic notes of the testimony of a witness at a former trial of the case, who was fully examined and cross-examined, and who died after the first trial and before the second, was properly admitted in evidence' against the accused on the second trial.

It is next urged that the court erred in admitting evidence concerning two transactions which, it is stated and admitted by the government, originally formed the basis of two counts of the embezzlement indictment, and on which the defendant was acquitted at the first trial. The record shows that this evidence was admitted by the court solely as tending to establish the intent which actuated the defendant in the transactions involved in the book indictment, that is to say, as tending to show a motive for the taking away and concealing of the books as charged in that indictment. The defendant was not there charged with embezzling the funds shown to have come into his hands through those two- transactions, but nevertheless he' may have been personally liable in a civil action because of those transactions. This evidence, therefore,- had a direct bearing upon the question of intent under the book indictment, and was properly received.

It is next urged that there was no evidence in the case tending to show that the defendant concealed or destroyed any records or books of the association, and hence that the defendant’s prayer that the jury be directed to find a verdict of not guilty shbuld have been granted. The government’s evidence tended to show that the records which the defendant was charged with taking were all deposited in the safe of the association of which the defendant was secretary-treasurer, and that the defendant alone had knowledge of the combination. Other evidence was introduced tending to show motive on his part for destroying those records, exclusive opportunity, and, finally, their actual disappearance under circumstances pointing to the guilt of the defendant. Clearly it was for the jury, and not the court, to say, under this evidence, whether the defendant was guilty.

*67It is further contended on behalf of the defendant that the modification by the court of the. defendant’s sixth prayer constituted error. In the first part of that prayer, which the court granted, the jury were instructed that, even though they should find that the defendant, as secretary-treasurer of the building association named in the indictment, received the money, or any part thereof, in either of the counts before the jury, they should not find him guilty of conversion of the same to his own use, or embezzlement thereof, unless they further found from the evidence that he in fact converted the same to his own use, or fraudulently made way with it, or secreted the same with intent so to convert it. The court refused to grant the following': “And from the mere fact that he received the same, and the absence of any explanation of the use to which the same was applied by him, you may not find that he converted the same to his use, or secreted the same, and, accordingly, cannot find him guilty of the embezzlement thereofAn examination of the rejected part of the prayer discloses that it is based upon the assumption that there was no evidence tending to show conversion other than the mere fact of the receipt of the money by the defendant and his failure to explain what he did with it. In other words, it entirely leaves out of view all other facts or circumstances in evidence. The court did charge the jury, however, that they must find, first, the existence of the building association; second, that the defendant was an officer, agent, and employee of the association; third, that he received certain moneys as such officer, which belonged to the association; and, fourth, that while he was in possession of such funds, he wrongfully converted them to his own use.

The last assignment of error is based upon the defendant’s contention below that, if the jury should find that he had formed the intention of converting the funds of the association before or at the time of the receipt of such funds, and had converted the same pursuant to such intention, he was guilty of larceny, and not embezzlement. This question was fully considered by us in Rhode v. United States, 34 App. D. C. 249, and Woodward v. United States, 38 App. D, C. 323, In this case, as in *68those, the money was not obtained by the defendant through any trick or device, but, on the contrary, was regularly intrusted to him in his capacity as secretary-treasurer; that is, in his capacity as the lawful agent in charge of the association’s business. .When, therefore, he wrongfully converted this money to his own use, or fraudulently made way with it, or secreted it with intent to convert it to his own use, he was guilty of embezzlement, within the meaning of sec. 834 of the Code [31 Stat. at L. 1325, chap. 854]. This view is fully sustained by the reasoning in the two cases above cited.

Finding no error in the record, the judgments are affirmed.

Affirmed.

On December 12, 1913, the Supreme Court of the United States denied the application for a writ of certiorari.