28 F. 812 | W.D.S.C. | 1886
The defendant, under the name of William Henry, alias <T. J. Smith, etc., had been indicted under section 5480 of the Revised Statutes, for depositing in the mail a letter or packet in furtherance of a fraudulent scheme or device, to be carried out by the use of the post-office department. The indictment contained three several charges, based on distinct acts. Ho was found guilty, and a motion in arrest of judgment was entered, which has not yet been hoard. Before the verdict was rendered in that case, the defendant under the name of William Martin, alias, etc., was presented by the grand jury for violating the same section of the Revised Statutes. The indictment contains three distinct charges, wholly distinct from the charges in the first indictment; occurring, however, within the same six months in which these acts were alleged to have been committed. To this second indictment the defendant pleaded in bar his conviction under the first indictment, and the district attorney demurred to the plea.
In order to sustain a plea of autrefois acquit or of autrefois convict, it should appear that the former proceedings have been concluded, in the present case the motion in arrest of judgment is still pending. Non constat that the defendant will be convicted.
Apart from this, I am of opinion that it was not the intention of this section of the Revised Statutes to coniine the government to the prosecution of three several acts among transactions extending over six calendar months. Were this construction of the section to be maintained, a man may, within six calendar months, deposit in the mail, or receive from the mail, a thousand letters in furtherance of Ins fraudulent scheme, and yet the government must condone all but three of these unlawful acts. Persons who deposit or receive letters for their fraudulent purposes necessarily remain hut a short time in any one place. When the nefarious design is detected, can it be that the officers of the government must examine into the proofs against him, select three instances occurring within the same six months, prosecute on them, and if, perchance, the prosecution should fail, the offender shall go unwhipped of justice?
Besides this, the section forbids not the general use of the post-office for the purpose of carrying out a fraudulent scheme or device; it forbids the putting into the mail of a letter or packet, and the taking out of the mail a letter or packet, in furtherance of such scheme. Each letter so taken out, and each letter so put into, the mail, is a distinct and separate violation of the section..
The demurrer is sustained. Let the defendant plead over.
Sec. 1024. When there are several charges against any person for tbe same actor 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 indictments aré found in such cases, the court may order them to be consolidated.
