Rose v. United States

295 F. 687 | 4th Cir. | 1924

ROSE, Circuit Judge.

The plaintiff in error, defendant below and hereafter so styled herein, was tried upon an indictment of 14 counts, each of which charged him with having mailed a letter in furtherance of a scheme to defraud devised by him. Nine of1 the counts alleged a scheme to defraud those who sold him goods, while the remaining 5 set forth an artifice by which he undertook to cheat his selling agents out of small sums he required them to deposit with him.

Defendant assigns error to the overruling of his motion to compel the government to elect between these two sets of counts. Whether an election shall be ordered, and, if so, at what stage of the case is a matter usually within the judicial discretion of the trial judge, and not reviewable on writ of error, unless there has been such an abuse in its exercise as is not found here. Defendant’s complaint that the evidence did not justify a verdict of guilty is not well founded.

The remaining assignment raises a somewhat unusual question. Before the elevation of the District Judge to the bench, he had been the attorney of the United States for the district. In that capacity his name was signed to an indictment against the defendant, based upon some of the same transactions as those upon which the succeeding attorney of the United States preferred the one upon which the defendant was tried and convicted. Until after the verdict of the jury, every one concerned had lost sight of the existence of the earlier indictment. There were and are several assistants in the office of the United States attorney for the Eastern district of Virginia and many prosecutions are there instituted. If the learned judge, when he was the United States attorney for it, had ever heard of the defendant, or of the offenses which he was supposed to have committed, all recollection of him and of them had passed out of his mind. Under such circumstances, it would be absurd to suggest that the rights of the defendant could have been prejudiced. Section 269, Judicial Code, as amended by Act of February 26, 1919, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246); Utz & Dunn Co. v. Regulator Co., 213 Fed. 315, 130 C. C. A. 17.

Affirmed.