Wetzel v. United States

233 F. 984 | 9th Cir. | 1916

GILBERT, Circuit Judge

(after stating the facts as above). [1] It is assigned as error that the court overruled the defendant’s motion to quash the indictment, which was interposed on the ground that the indictment charged one offense in three counts. That defect, if it existed, was no ground for quashing all three counts. A motion to quash is not favored by the courts. It is ordinarily addressed to the discretion of the court. Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; Hillman v. United States, 192 Fed. 264, 112 C. C. A. 522. And the objection that all the counts are for the same offense should be made by motion to require the prosecution to elect, and not by a motion to quash the indictment. United States v. Harmon (D. C.) 38 Fed. 827.

[2] It is urged that the indictment is defective, in that it does not set forth the facts upon which the government relied to show that the printed circular mailed by the defendant contained information forbidden by the statute. But the indictment in the first count states that the figures so pasted on the back of the circular “then and there gave information that divers articles and things designed, adapted, and intended for producing abortion might be obtained at 938 Fillmore street,” and there is a corresponding allegation in the other counts. The indictment substantially conforms to that which was approved in United States v. Grimm (D. C.) 50 Fed. 528, and Grimm v. United States, 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550, cited by the defendant as examples of proper pleading.

[3] It is contended that the court erred in not requiring the government to elect on which of the three counts the defendant should be tried. The first count charged that the letter sent by the defendant' gave information where divers articles and information designed and intended for producing abortion might be obtained, the second charged that it gave information where an operation for abortion could be performed, and the third that it gave information as to who would perform the operation. The verdict on the first count has been set aside, and the court has ordered a new trial thereon. We do not find it necessary to inquire whether the defendant could have been compelled to go to trial on an indictment which, by the means alleged, charged him in one count with giving information as to the place where an abortion might be performed,' and in another with giving information as to the person by whom it might be performed.

We are inclined to the view that such pleading was permissible. But, however that may be, we think that in this case the defendant has suffered no prejudice by the ruling of the trial court. Obviously the offense of which he was charged, and for which he was convicted, and upon which he was sentenced, was the single act of sending by mail the figures “938” and “100” in answer to a letter of inquiry as to a proposed abortion. The judgment of the court was:

“That, whereas, said J. F. Wetzel having been duly convicted in this court of the crime of violation of section 211 Criminal Code of the United States, it is therefore ordered and adjudged that said J. F. Wetzel be imprisoned for the term of six months in the Alameda county jail, Alameda county, California.”

This is not a sentence upon two counts, but it is in form a sentence upon a conviction of a single offense. The sentence which was imposed does not exceed that which is permissible upon a single offense. Where a verdict of guilty is rendered upon more than one count, and the sentence does not exceed that which might properly be imposed upon conviction under any single count, the sentence is good if either count is found sufficient. Claassen v. United States, 142 U. S. 140, 12 Sup. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 608, 14 Sup. Ct. 939, 38 L. Ed. 839; Kalen v. United States, 196 Fed. 888, 116 C. C. A. 450; Norton v. United States, 205 Fed. 593, 123 C. C. A. 609; Tubbs v. United States, 105 Fed. 59, 44 C. C. A. 357.

We find no error. The judgment is affirmed.

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