25 F. Cas. 850 | U.S. Circuit Court for the District of Ohio | 1840
OPINION OF THE COURT. This was an indictment for stealing letters and packets from the mail of the United States. The indictment contained nine counts, as follows: 1. For stealing the mail; 2. Stealing letters and packets out of the mail; 3. Stealing the mail, and opening it, and taking therefrom certain bank notes; 4. Stealing from the mail three certain letters containing bank notes; 5. For cutting the mailbag, with intent to steal, and take a letter therefrom; 6. For being present, aiding and assisting Charles Bost-wick in stealing the mail; 7. For receiving certain bank notes, knowing them to have been stolen; 8. For concealing certain bank notes, knowing them to have been stolen from the mail; 9. For aiding Bostwick in concealing certain bank notes, knowing them to have been stolen from the mail.
After the defendant had pleaded not guilty, and before the jury were called, the counsel for the defendant moved that the district attorney be required to make an election, on which count Id the indictment he will rely for a conviction of the defendant; and Eng-glish Crown Cases, 234, was cited in support of the motion. It was opposed by the district attorney.
The principal ground on which an election by the prosecuting attorney is urged, is, that by including distinct offences in the same indictment, the defendant is restricted in his right of challenge. He may be willing to be tried by some of the jurors on some of the counts, but unwilling that they should pass upon others. It is clear that offences of a different class, and which require different punishments, as murder and larceny, can not be joined in the same indictment. In the case of Young v. Rex, in error, 3 Term R. 106, the court held that it was no objection in arrest of judgment, that the indictment contains several charges of the same nature in the different counts. The same principle was held in 2 Maulé & S. 379. Lord Kenyon remarked, the judgment on all the counts is precisely the same; a misdemeanor is charged in each. Most probably the charges were meant to meet the same facts; but, if it were not so, I think they might be joined in the same indictment. In the case of Reg. v. Strange, 8 Car. & P. 172, it was held that the offences of stabbing and cutting, with intent to murder, and- with intent to maim and disable, altnough the judgment differs, being capital on the first count, and not on the others, they would not require the prosecutor to elect on which charge he will proceed.
It is no objection, in point of law, that an indictment charges prisoners, in one count, as principals in stealing, and, in another, as receivers; but. upon a case reserved, the judges were divided in opinion, whether the prosecutor should have been put to his election, and directed that both charges should not, for the future, be put in the same indictment. Rex v. Galloway, 1 Moody, Crown Cas. 234. And a rule was subsequently adopted by the judges, that, in a case ■ like the above, the prosecutor should be put to his
The first five countB in the indictment charge, substantially, the same offence, though taking .a letter or packet which contains bank notes, as charged in the third and fourth counts, is punished by a higher penalty. In fact, the court can not but know that all the counts in the indictment relate to the same transaction, and that the variation of the form in which the offence is charged, in the different counts, is done with a view to meet the evidence, and that they present only different grades of the same offence. Should the jury convict the defendant under the third or fourth counts, it would virtually cover all the other counts. There could be but one punishment. This' subject must depend, in a great degree, on the exercise of a sound discretion by the court. They will see that offences shall not be so joined, in the same indictment, as to deprive the defendant of’ any right which the law gives him. Experience shows the propriety, and, indeed, necessity of charging the offence in different ways, so as to meet the proof; and within the knowledge of the court, no injustice has been done, under this practice, to defendants. And we think, that in a case like the present, great injustice would be done to the public, by compelling the prosecuting attorney to make an election. The motion is, therefore, overruled.
The jury being sworn, in the course of the examination of the witnesses, Bostwick, who was the driver of the mail stage at the time the mail is charged to have been robbed, and who, having been indicted for the same at the present term, pleaded guilty, was offered as a witness by the prosecuting attorney; and the court held that sentence not having been passed on him he was a competent witness. That the circumstances under which he was offered, could be used to impeach his credit. He was informed, however, by the court, that he was not bound to state any fact which would criminate himself. Eliza French was, also, called as a witness, and, while under examination, was asked a question which, if answered one way, would show her character to be infamous; and the court informed her that she need not answer the question. Witnesses were afterwards called to impeach her character, and on a question being asked whether she was not a lewd woman, the court interposed, and said that the question must be restricted to her general character for veracity. See U. S. v. Vansickle [Case No. 16,609], and the authorities there cited. A question was then asked a witness whether Eliza French had not stated, in his hearing, certain facts, with the view of discrediting her evidence, by showing that such statement was materially different from the facts sworn to by her. This-was objected to, and the court sustained the objection, bn the ground that as the witness, when under examination, had not been questioned as to such statement, it could not be proved to discredit her. That to lay the foundation for such evidence, Eliza French must have been asked, when under examination, whether she made such statement. M’Kinney v. Neil [Id. 8,865]; 1 Phil. Ev. (Ed. 1839) 293; 2 Brod. & B. 286, 315. Eliza French was again called, without objection, and the question was asked her whether she had made a certain statement, repeating the substance of it, to an individual, naming him,which she answered in the negative. After this the impeaching evidence was heard. And certain questions were asked of her, by the defendants’ counsel, in regard to certain matters which, though they had a remote relation to the subject matter of inquiry, had no direct relevancy, with the view of contradicting her answers, to discredit her. This was objected to, and the court sustained the objection.
Such questions must be relevant to the matter in issue. Spenceley v. De Willott, 7 East, 110. If the answer were given on a collateral matter, no contradictory evidence could be heard. Harris v. Tippett, 2 Camp. 638; 1 Blackf. 86; Ellmaker v. Buckley, 16 Serg. & R. 77. This question came distinctly before the supreme court, at the last tern,, in the case of Philadelphia & T. R. Co. v. Stimpson, 14 Pet. [39 U. S.] 461, in which the court said, “that a party has no right to crossex-amine any witness except as to facts and circumstances connected with the matters stated in his direct examination.” A witness may be examined as to expressions or acts conducing to show a bias for or against either of the parties. Under this rule it might be proper to ask the witness, whether he did not prevent, or endeavor to prevent, the attendance of a witness, and whether he did not threaten to be revenged of one of the parties. This has no direct relevancy to the matters in issue, but it affects the credit of the witness, and, therefore, is admissible.
_Except the above, no questions of law were raised in the course of the trial; and it is not deemed necessary to state the facts which were submitted to the jury. The verdict was, “Not guilty.”
