strong that if it were a question of first impression I should be inclined to adopt his opinion. Locking, however, to the adjudicated cases, I find the law to be very well settled against the position assumed by the counsel for petitioner. I am the more inclined to follow these adjudications in this case because * the punishment inflicted might, under the two counts admittedly good, have extended to ten years' imprisonment. R. S., secs. 5169, 5478. The prayer of the petitioner is denied.

KREKEL, D. J., concurs.

UNITED STATES v. SCOTT.

(District Court for Indiana: 4 Bissell, 29-34. 1865.)

Opinion by McDONALD, J.

STATEMENT OF FACTS. The indictment in this case contains three counts. The first count, in general terms, charges that the prisoner conspired with divers persons named, to prevent the execution of three distinct acts of congress, the titles of which it recites. The second count charges a like conspiracy with the same persons with a like purpose, and alleges that, in pursuance of that purpose, the prisoner and his co-conspirators assaulted one Eli McCarty while in the performance of his legal service" in relation to the due execution of said acts of congress, and murdered him. The third count charges that the prisoner, intending to prevent the execution of said acts of congress, assaulted said "McCarty, being then and there a person employed in the performance of service relating to the enrollment of the national forces duly ordered by the proper legally constituted authorities," and that while he was thus employed the prisoner murdered him. Counsel for the prisoner now move to quash the whole indictment for a misjoinder of counts. They also move to quash each count as being defective on its face.

82222. By the common law there can be no joinder of two or more counts, where the judgment on each would be materially different.

I. As to the question of a misjoinder of counts. In examining this question, it is not important to consider whether each count in itself is either good or bad. In civil actions there may be duplicity, though a part be ill pleaded. Gould, Pl., 427. So, though some of the counts be defective in an indictment, there may be a misjoinder. This rule, however, would not prevail where the part supposed to produce the duplicity or misjoinder is mere surplusage. But that is not the case here. The first count in this indictment charges a mere conspiracy, which is only a misdemeanor, or at most a felony not punishable capitally. The second and third charge murder, a capital crime.

§ 2223. —— the common law not changed in this respect by acts of congress. At common law, the general rule is, that if the legal judgment on each count would be materially different, as in the case of a misdemeanor and a felony, there can be no jonder. Whart.'s Am. Cr. L., § 418. Here the judgment on the first count could only be fine and imprisonment. 12 U. S. Stats. at Large, 284. On the second and third counts, the punishment, on conviction, would be death. 13 U. S. Stats. at Large, S. Judged, therefore, by the rules of the common law, there is plainly a misjoinder of counts in this indictment. The district attorney, however, insists that an act of congress on this subject cures this defect. The act referred to provides that "whenever there are or shall be several charges against a person or persons for the same act or 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," the whole may be joined in one indictment. 10 U. S. Stats. at Large, 162. The latter provision of this act evidently does not alter the common law. Weinzorpflin v. State, 7 Black., 186; State v. Smith, 8 il., 489. And, in our opinion, the former part of the statute cited does not help the case. For we cannot see from any allegation in the indictment before us, either that all these counts refer to the same act or transaction," or that they all are "acts or transactions connected together." Indeed, the contrary appears by the indictment itself; for the first and second counts charge a conspiracy between the prisoner an 1 divers other persons; the third charges a murder committed by him alone. The indictment is plainly bad as having a misjoinder of counts. But as this defect may be cured by a nolle prosequi to some of the counts, we will examine the motion to quash the separate counts.

§ 2224. A count in the words of the act is sufficient.

II. The motion to quash each count as being defective on its face.

1. The first count charges, in general terms, a conspiracy between the prisoner and several other designated persons "to prevent, hinder and delay by force the execution" of three acts of congress relating to the military, and particularly designated in the indictment. The count is on the act of July 31, 1861, which declares that if two or more persons shall conspire together, by force, to prevent, hinder or delay the execution of any law of the United States, they shall be deemed guilty of a high crime, etc. Large, 284. The count is in the words of the act, which, as sufficient; and we think it suflicient in the present case. count good.

12 U. S. Stats. at

a general rule, is We hold the first

§ 2225. There can be no indictment in the federal courts for a murder which is exclusively cognizable in the state courts.

2. The second count is, in our opinion, clearly bad. It substantially charges a combination between the prisoner and others to prevent, hinder and delay the execution of certain acts of congress, and that, in attempting to consummate this unlawful purpose, the prisoner murdered Eli McCarty. In the national courts there can be no indictment unless some act of congress authorizes it. There is no act of congress punishing murder committed under the circumstances stated in this count. Such killing is exclusively cognizable in the state

courts.

§ 2226. In indictments for murder, the utmost precision and certainty are required in the allegations.

3. The third count charges that the prisoner did assault, hinder and impede one Eli McCarty while in the performance of his legal service, under and in pursuance of, and in relation to the due execution of, a law of the United States, etc., he, the said Eli McCarty, being then and there a person employed in the performance of service relating to the enrollment of the national forces, duly ordered by the proper and legally constituted authorities, in pursuance and by virtue of the laws aforesaid, and murdered said McCarty in that assault. The indictment states these facts with more formality than we have done; but the above is the substance of them. The act of congress under which this indictment is framed provides that whoever shall "assault, obstruct, hinder, impede or threaten any officer or other person employed in the performance of any service in any way relating" to the enrollment of the militia, shall be deemed guilty of murder, if, in such opposition to the officer or other

person, death shall ensue. 13 U. S. Stats. at Large, 8. We think the allegations in this count are not sufficiently particular and definite. In indictments for murder, the utmost certainty has always been required. Here it is not stated whether McCarty was an officer or not, or under what or whose authority he was acting. Nor is it stated what particular duties connected with the enrollment of the national forces he was performing at the time of the assault and murder. The indictment indeed alleges that McCarty was "a person employed in the performance of service relating to the enrollment." But it omits to state whether he was an officer or a mere servant of an officer. It says that he was "duly ordered by the proper legally constituted authorities" to perform these duties. But it fails to state who were those authorities. It avers that certain things were "legally" and "duly" done. But this is merely pleading matter of law. How they were legally and duly done ought to have been averred. All these are very vague allegations in an indictment for murder. Where a man was indicted for stealing coin, the indictment was held bad for not stating the species of coin stolen. Rex v. Fry, Russ. & Ry., 482. Where an indictment charged that the accused "retarded" an officer in the discharge of his duty, it was held bad for not showing the acts by which the officer was retarded. Rex v. How, 1 Strange, 699.

§ 2227. The rule that it is sufficient in an indictment to follow the words of the statute is subject to many exceptions.

It is true that the third count follows the words of the act on which it is founded. This, we have already said, as a general rule, is sufficient; and we have applied this rule to the first count. But it is a rule seldom applicable to indictments for capital crimes; and it is subject to many exceptions even in lower offenses. It is, indeed, often difficult to determine when such a mode of pleading may be safely adopted. The supreme court of Indiana say, "as an approximation to a test," that where a statute defines the offense generally, and designates the particular acts constituting it, it is sufficient, in charging the crime, to follow substantially the language of the statute; but where the statute defines the crime generally without naming the particular acts which constitute it, it might be necessary to set out the acts done, so that it might appear to the court whether the acts done amount to the crime. Malone v. State, 14 Ind., We are of opinion that this is a distinction worthy to be followed; and we think it applies even in cases not capital, and is strongly applicable to the case at bar. We are clear that the third count is bad.

219.

UNITED STATES v. O'CALLAHAN.

(Circuit Court for Ohio: 6 McLean, 596-598. 1855.)

Opinion by the COURT.

STATEMENT OF FACTS.- The defendant's counsel move to quash this indictment, on the ground that it contains several charges of distinct offenses. In point of law there is no objection to the insertion of several distinct felonies. of the same degree, though committed at different times, in the same indictment against the same offender, and it is no ground either of demurrer or arrest of judgment. Upon this ground it has been holden that an indictment on 37 George 3, ch. 70, may, without any repugnancy, charge the double act that the defendant endeavored to incite a soldier to commit mutiny, and also to incite him in traitorous practices. Thus, too, in arson, counts at common law and on the statute may be joined, without danger; a count for a robbery may

be joined with another for stealing privately from the person; and burglary and theft, forcible entry and detainer, have been frequently united in the same proceeding. A count for embezzlement on the 39 George 3, ch. 35, may be joined with a count for a larceny on 2 George 2, ch. 25, because these offenses are felonies; and a count for embezzling bank-notes upon the 39 George 2, ch. 85, may be joined with a count for larceny at common law. 2 Hale, 173; 2 Leach, 1103; 12 Ward, 425; 8 East, 41; 3 Term R., 2, 106; Cro., 6, ch. 41; 8 Ward, 211; 1 B. & P., 180; 2 Leach, 799; 1 Leach, 473; 2 East, P. C., 935-6; 2 Leach, 1108; 3 M. & S., 539.

$2228. The rule as to charging two or more offenses in the same count, and in different counts in the same indictment.

But he

In Archbold's Criminal Pleadings, pp. 55-6, he says, if a defendant be charged with two or more offenses in the same count of an indictment, the count will be bad for duplicity, except in one or two excepted cases. remarks, "as to charging a defendant with different offenses in different counts, it admits of a different consideration." A defendant, he says, ought not to be charged with different felonies in different counts of an indictment; as for instance, a murder in one count, and a burglary in another.

§ 2229. The question as to joinder of different offenses in the same indictment settled by act of congress.

But a late act of congress has a bearing upon this question and settles it. In the first section of the act "to regulate the fees and costs to be allowed clerks, marshals and attorneys of the circuit and district courts of the United States," etc., it is declared "that whenever there are or shall be several charges against any person or persons for the same act, 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 shall be found in such cases the court may order them consolidated.” The distinct offenses, charged in the indictment before us, belong to the same class; it being a charge for passing counterfeit coin, purporting to be gold and silver pieces, at different times, and on different occasions. This may, perhaps, have been done to meet the proofs. But, however this may be, the act of congress referred to, with the view of saving costs, authorizes the charges as they are made; and if distinct indictments had been found, on the separate charges, the act of congress would authorize the court to consolidate them. I should be extremely reluctant, where an offense was committed, under a law, in several distinct ways, by the same transactions, to hold the defendant punishable under each. This would be contrary, it seems to me, to the genius of our laws, and to the humanity which characterizes them. Still it must be admitted, where offenses of the same class may be charged in the same indictment, committed at different times and under different circumstances, that the punishment, appropriate to each, must be inflicted. The motion to quash is overruled.

UNITED STATES v. PATTY.

(District Court, Eastern District of Wisconsin: 9 Bissell, 429-434. 1880.)

Opinion by DYER, J.

STATEMENT OF FACTS.- This is an indictment under section 3894, Revised Statutes, which provides that "no letter or circular concerning illegal lotteries, so-called gift concerts, or other similar enterprises offering prizes, or concerning

schemes devised and intended to deceive and defraud the public, for the purpose of obtaining money under false pretenses, shall be carried in the mail. Any person who shall knowingly deposit or send anything to be conveyed by mail, in violation of this section, shall be punishable" as the statute prescribes. The indictment contains three counts. The first count sets out at length the organization of a lottery scheme, by which the defendants undertook to dispose of a hotel at Fond du Lac, known as the Patty House, and charges that on the 1st day of November, 1879, and on each and every secular day in said month of November, and on each and every secular day between the 30th day of said month of November and the 10th day of February, in the year 1880, the defendants did knowingly, wrongfully and unlawfully deposit in the postoffice of the United States, at the city of Fond du Lac, and did send to the said postoffice, to be conveyed by mail, within the meaning of section 3894 of the Revised Statutes, a large number, to wit, five hundred printed circulars concerning said lottery, on each of said days, duly addressed and postpaid, directed to divers persons within and beyond the limits of this district; which circulars each and all were sent and conveyed by and through the mail.

The second count charges that on the 20th day of January, 1880, the defendants deposited in the post office at Fond du Lac one hundred printed circulars concerning said lottery, addressed to persons unknown to the grand jurors, and that they were deposited to be sent and were sent by mail. The third count is similar to the second, except that it charges the deposit in the post office at Fond du Lac, on the 1st day of December, 1879, for the purpose of conveyance through the mail, of five hundred circulars concerning said lottery. A motion is made to quash this indictment for duplicity, it being claimed that the first count charges forty-five thousand distinct, independent offenses, the second count one hundred, and the third count five hundred. Upon the argument stress was laid by counsel for the defendants upon the language of this section, which is that "no letter or circular concerning illegal lotteries . . shall be carried in the mail. . . Any person who shall knowingly deposit or send anything to be conveyed by mail in violation of this section shall be punishable," etc. And it was insisted that the deposit in the postoffice of a single circular to be carried in the mail constituted an offense. This position was controverted by the attorney for the United States, who urged that, under a proper construction of this statute, an indictment could hardly be maintained. that charged the deposit or sending by mail of a single letter or circular relating to a lottery, and that it was deemed necessary to set out in the indictment the scheme in which the defendants were engaged, and by means of which they were seeking to dispose of certain property, and that each count of the indictment ought to be regarded as stating a single act, and therefore a single offense. § 2230. An indictment under section 3894, Revised Statutes, charging that a specified number of lottery circulars were on a certain day deposited in the postoffice, charges a single offense.

It is true that the second and third counts do not specifically allege that on the 10th day of January, 1880, one hundred of these circulars were, at one time and as one act, deposited in the postoffice; nor does the third count in express terms allege the deposit, at one time and as one act, of five hundred of these circulars; but I think the allegations of each of these counts may be fairly construed to charge the commission of a single offense. To hold otherwise would involve a construction too restricted and technical; and I think there can be no doubt that, although it might, under this statute, be an offense to deposit