docket, held criminal contempt proceedings wherein no appeal lay from decision exonerating defendants.

4. Contempt 66(4)-Rule denying appeal from judgment for defendants in criminal cases applies in criminal contempt cases, notwithstanding statute (Criminal Appeals Act, March 2, 1907 [Comp. St. § 1704]).

Rule denying appeal from judgment for defendants in criminal case applies to criminal contempts, nor does Criminal Appeals Act March 2, 1907 (Comp. St. § 1704), afford authority for appeal in such cases.

In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Judge.

Two criminal contempt proceedings by the United States, on the relation of the West Virginia-Pittsburgh Coal Company, against Van A. Bittner and others. To review an order exonerating defendants, relator brings error. On motions to dismiss.

Writs of error dismissed.

J. M. Ritz and John A. Howard, both of Wheeling, W. Va. (Wm. C. Howard, of Wheeling, W. Va., on the brief), for plaintiff

in error.

Henry Warrum, of Indianapolis, Ind. (T. C. Townsend, of Charleston, W. Va., John D. Gardner, of Steubenville, Ohio, and W. J. Walker, of St. Clairsville, Ohio, on the brief), for defendants in error.

Coal Company, a Corporation Organized under and by Virtue of the Laws of West Virginia, Having Its Principal Office at Wellsburg, in the Northern District of said State, Plaintiff, v. John L. Lewis, Philip Murray, Van A. Bittner, Lee Hall, William Roy, G. W. Savage, Frand Ledvinka, John Cinque, W. T. Roberts, Joseph Angelo, W. T. Martin, Andy Swartz, David Stephens, Lou Vandine, and Homer Colley, Defendants, Criminal Contempt Proceeding, No. 8019."

The petitions each set out that the several defendants therein were, and had been, guilty of contempt of court in violating, with many persons and corporations, and in many ways, elaborately set forth in said petitions, the provisions of an order of injunction entered on July 10, 1923, by the

United States District Court for the Northern District of West Virginia, in a cause pending in said court entitled West VirginiaPittsburgh Coal Company, a Corporation, et cetera, v. Jno. P. White and Others. Upon 21st and 24th of April, 1925, respectively, the presentation of said petitions, on the the District Court duly entered its decrees directing the issue of attachments against each of the defendants requiring them to show cause on the 26th of April, 1925, why they should not be adjudged guilty of contempt of court in disobeying its lawful deas complained of. The defendants

cree

WADDILL, Circuit Judge. These two proceedings, involving questions of contempt of court, respectively set forth in the petitions in each cause, will be considered together, as they depend upon substantially the same facts, and were so heard in the District Court. The proceedings were instituted on the 21st day of April, 1925, the first named No. 2431, entitled "United States of America ex rel. West Virginia-Pittsburgh Coal Company, a Corporation Organized under and by Virtue of the Laws of West Virginia, Having Its Principal Office at Wellsburg in the Northern District of said State, Plaintiff, v. John L. Lewis, Philip Murray, Van A. Bittner, Lee Hall, William Roy, G. W. Savage, Frank Ledvinka, John Cinque, W. T. Roberts, Joseph Angelo, Pearl Dooley, Harvey Lafollette, Tony Corrodi, Robert Corrodi, Angelo Nude, William Vernon, and Pete Coffaro, Defendants, Criminal Contempt Proceeding, No. 8017," and the second, No. 2432, entitled "United States of America ex rel. West Virginia-Pittsburgh

The cause was heard upon petitions, answers, replications, and exhibits filed, and the appearance of sundry defendants in person as well as by counsel, and the court, on the 2d of June, 1925, decreed as follows:

"United States of America ex rel. West Virginia-Pittsburgh Coal Co., a Corporation, etc., Plaintiff, v. John L. Lewis et al., Defendants. Criminal Contempt Proceeding, No. 8017.

The court is of the opinion, for the reasons given in a written opinion filed on the 8th day of May, 1925, and here made a part of the record, and also for the reasons given in the first paragraph of a memorandum of opinion filed May 16, 1925, which first paragraph is also hereby made a part of the record, and also for the reasons given in another memorandum of opinion this day handed down, which is also made a part of the record, that the said responses of the said defendants have sufficiently purged them of the contempt charged in the relator's petition, it is there

fore further adjudged, ordered and decreed that the said petition be dismissed and that the said defendants be discharged, to all of which the relator objects and excepts.

"It is further considered by the court that the relator, the West Virginia-Pittsburgh Coal Company, be required to pay the costs of the prosecution of said petition for contempt, but that the defendants do not recover of the said West Virginia-Pittsburgh Coal Company their costs in said proceeding."

From the entry of this order writs of error were sued out, and are now under review herein.

[1] The first question requiring our consideration is the motion made by the defendants in each case to dismiss the writs of error because, the decision of the lower court having resulted in the acquittal of the defendants, such action could not be made the subject of review by this court. The determination of this question depends upon whether the contempt proceedings are civil or criminal. If the latter, then defendants' motion to dismiss should be sustained, as the same brings into question the jurisdiction of the court, and can appropriately be disposed of by motion to dismiss.

[2] Just when a contempt proceeding may be termed a criminal contempt, or a civil contempt, is not always easily determined, as the same decree sometimes may possess the characteristics of both. In re Merchants' Stock & Grain Co., 32 S. Ct. 339, 223 U. S. 639, 56 L. Ed. 584; Union Tool Co. v. Wilson, 42 S. Ct. 427, 259 U. S. 107-110, 66 L. Ed. 848. Proceedings for civil contempt arise between the original parties and are instituted and treated as a part of the main cause, while proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause. Gompers v. Buck's Stove & Range Co., 31 S. Ct. 492, 221 U. S. 418, 441, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.

[3] In these cases the writs of error were sued out on a judgment in a criminal contempt proceeding. It was so characterized by the petitioners in their original petition, namely, "United States of America ex rel. West Virginia-Pittsburgh Coal Company, a Corporation Organized under and by Virtue of the Laws of West Virginia, v. John L. Lewis et al.," entitled "Criminal Contempt Proceeding, No. 8017," and a like designation of the title in the second cause, "Criminal Contempt Proceeding, No. 8019," and the prayers of the petitions, respectively were: "Your petitioner prays that this pe

tition be entered as a charge of criminal contempt on the criminal docket of this court, and be proceeded in as such criminal contempt proceeding according to the laws of the United States applicable to the class of criminal contempts to which the kind of contempt charged in this petition properly belongs." While this prayer of the petitions would seem to be determinative of the character of the contempt, the court, in awarding the attachments prayed for, in terms directed the defendants "to answer to the United States of America for certain trespasses and contempts brought against them in our court before us, and have then and there this writ," etc., and the court, in its opinion of the 8th of May, 1925, as well as in its opinion and final order in the case of the 2d of June, 1925, adjudging the defendants to be purged of contempt and dismissing the same at the cost of the West Virginia-Pittsburgh Coal Company, in terms found the same to be a criminal contempt.

[4] Treating the proceedings as for criminal contempts, there is no jurisdiction in this court to review the action and conclusion of the lower court exonerating the defendants from such contempts and dismissing the proceedings, for the reason that no appeal lies from the judgment in favor of the defendants in a criminal case, and this applies to criminal contempts as well as to other criminal cases. United States v. Sanges, 12 S. Ct. 609, 144 U. S. 310, 312, 36 L. Ed. 445; Craig v. McCulloch, 20 W. Va. 148; Commonwealth v. Richardson, 125 S. W. 147, 136 Ky. 699; Rapalge on Contempts, § 146. It may be said in this connection that the Criminal Appeals Act of March 2, 1907, chapter 2564, 34 Stat. L. 1246 (Comp. St. § 1704), affords no authority for appeal in this class of cases.

The motions to dismiss will be granted, and the writ of error sued out in each case dismissed at the cost of the plaintiff in error, the West Virginia-Pittsburgh Coal Company, a corporation.

Writs of error dismissed.

ROSE, Circuit Judge (concurring). I agree that while the defendant to a charge of criminal contempt may sue out a writ of error, no one else may. In the instant case, it may be worth while also to point out that from the standpoint of the law, no one other than the government is aggrieved by the acquittal of one accused of such contempt, and therefore it alone has any right to complain of such action. The United States has taken no part in these proceedings.

I also agree that the act of 1907 mentioned in the opinion of the court affords no support to these writs of error. Under that statute, the United States alone can sue out a writ of error, and the right of review it gives is still vested in the Supreme Court exclusively. Act of February 13, 1925 (43 Stat. 938 [Comp. St. Supp. 1925, § 1215]).

ZEDD et al. v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. January 13, 1926.)

No. 2433.

Criminal law 620 (2)-Compelling defendants separately indicted to go to common trial held unauthorized by statutes (Rev. St. §§ 921, 1024 [Comp. St. §§ 1547, 1690]).

Compelling persons separately indicted for

offenses against Prohibition Law to go to common trial over their objections, held unauthorized by Rev. St. §§ 921 or 1024 (Comp. St. §§ 1547 or 1690), and reversible error, where offenses were such that consolidation could not properly have been ordered.

In Error to the District Court of the United States for the Eastern District of

Virginia, at Norfolk; D. Lawrence Groner, Judge.

Joe Zedd and others were convicted of violations of the Prohibition Law, and they bring error. Reversed and remanded for

new trials.

pints were also alleged to have been the quantity possessed and sold by his wife on the same 17th of January, which was also the date upon which Kizzie Reeves was charged with having sold and possessed a half a pint.

All the defendants were convicted. It will be unnecessary for us to consider more than one of their assignments of error. The court below, against their objection, directed that the charges against all of them should be submitted to the same jury and tried together at one time, although separate verdiets were to be returned and in fact were. The government says this order was authorized by each of two sections of the Revised Statutes, viz., those numbered No. 921 and No. 1024, respectively (Comp. St. §§ 1547, 1690). The former is a codification of section 3 of the Act of July 22, 1813, 3 Stat. 21; the latter of a provision of the Act of February 26, 1853, 10 Stat. 161, regulating fees and costs, so that one of them has been in force for 112 and the other for 72 years. The earlier act, so far as our examination of the reported cases goes, has never before been invoked to sustain either the consolidation or the trying together of separate indictments or informations against different defendants over the objection of either or any

of them. There are three instances in which order a consolidation of such indictments has the right of the court, under section 1024, to been in question. In two of them, the consolidation was proposed or was made against the consent of the accused, and in the third without the latter's having interposed any objection. In the last-mentioned case, which was also in point of time the latest of the three, it was said that while it might be assumed that the making of the order if seasonably objected to would have been reversible

ROSE, Circuit Judge. The plaintiffs in error were defendants below and will be so styled here. Two of them, Joe and Mollie Zedd, are husband and wife; the third, Kizzie Reeves, is a woman who was on the Zedd premises when they were visited by the federal officers. Three informations were exhibited, one against each of the defendants. That against the man had four counts, each of the others two. The charges against him had to do with two lots of whisky, one of one pint and the other of three gallons and three pints, each of which he was said to have possessed and sold, the former on the 13th of January, 1925, and the latter on the 17th-of the same month. Three gallons and three

court below had waived their right to complain in that above. Goldberg v. United States, 280 F. 89 (C. C. A. 5th Cir.) Of the two in which the defendants did object, the first was tried in the Circuit Court for the Northern District of California in 1856, only three years after the enactment of what is now known as section 1024. It was there held that it did not justify the consolidation of separate indictments against different defendants, although their offense was joint and they might have been jointly indicted for it. United States v. Durkee, Fed. Cas. No. 15008. Forty years later the second came before the Supreme Court, which disposed of the precise question before it by the statement: "It is clear that the statute does not authorize the consolidation of indictments in

such a way that some of the defendants may be tried at the same time with other defendants charged with a crime different from that for which all are tried." McElroy v. United States, 17 S. Ct. 31, 32, 164 U. S. 76, 80 (41 L. Ed. 355). The italics are ours.

In none of these cases, so far as the reports show, did anybody concerned suggest that what is now known as section 921 gave the power to do what section 1024 did not authorize, although the former says that the court may direct consolidations "when it appears reasonable to do so." It is possible that it was not thought of because the Act of 1813 was supposed to have relation to civil rather than to criminal practice, a notion which is not without plausibility in view of its other provisions and the purposes which it was intended to serve as they are stated in Mutual Life Insurance Co. v. Hillmon, 12 S. Ct. 909, 145 U. S. 285, 292, 36 L. Ed. 706. Its language is, however, broad, and some of the federal courts have without discussion assumed that it was applicable to criminal as well as to civil trials. Betts v. United States, 132 F. 228, 65 C. C. A. 452. On the other hand, according to the decided cases, important practical differences may depend upon whether a consolidation is ordered under the authority of one section rather than the other. When section 921 is invoked, the parties in selecting the jury are severally entitled to a number of peremptory challenges equal to the aggregate they would have possessed had the trials been separately had. Mutual Life Insurance Co. v. Hillmon, 12 S. Ct. 909, 145 U. S. 285, 36 L. Ed. 706; Connecticut Life Insurance Co. v. Hillmon, 23 S. Ct. 294, 188 U. S. 208, 47 L. Ed. 446; and Butler v. Evening Post Publishing Co., 148 F. 821, 78 C. C. A. 511, in this court. All of the cited cases were on the civil side. Where two or more criminal indictments are consolidated, as authorized by section 1024, it has been held that the jury should be selected and the trial conducted precisely as it would have been had all the counts of the consolidated indictments from the first been included in a single pleading. Kharas v. United States, 192 F. 503, 113 C. C. A. 109; Miller v. U. S., 38 App. D. C. 361, 40 L. R. A. (N. S.) 973.

From what has been said, it obviously might be interesting to inquire whether Congress intended the act of 1813 to apply to criminal cases, and, if so, whether in so far as it dealt with consolidation it was not repealed by the later and more specific provisions of the act of 1853. Doubtless, an authoritative answer to both these questions 11 F. (2d)-7

may some time be required, but for the purposes of the instant case none need now be given. For its decision it suffices to hold, as we must, that in it no order of consolidation could have been properly made against the objection of the defendants or any of them, because it would have put the two women on trial at the same time with the man who was charged with two offenses of which neither of them was accused. Moreover, although the government does not always have to prove dates and quantities precisely as they are laid in the information or indictment, no one can doubt that the attorney for the United States, when he caused the informations before us to be drafted, intended to distinguish the offendings he charged against Kizzie Reeves from any of those of which he alleged either of the Zedds to have been guilty. Under such circumstances, an order requiring the simultaneous trial of all these informations was open to all the objections which could be urged against a consolidation. As we read McElroy's Case, that which was there condemned was the forcing a common trial of separately charged defendants. The wording of the order by which that result was brought about was immaterial. In the brief of the government, it is said that by the procedure adopted below the trial court is permitted to despatch business, and that it would be "a distinct setback to the efforts now being made to bring about swift justice and to avoid delays, especially in criminal matters, for this court now to adopt the contention of the defendants and construe" the McElroy Case "as holding that charges must be against the same person in order that two indictments or informations be tried together before the same jury." Why would it be? If the evidence in the possession of the prosecution indicates that more than one defendant was concerned in the commission of a crime, it should be easier and cheaper to draw one information than two or, as in the instant case, three. There would be fewer entries to be made and fewer papers to be filed. No question can arise as to the number of challenges to which the parties will be entitled. The time of the court will not be taken up in finding out whether separate informations in reality all relate to one offense or to a series of like offenses in which all the defendants are alleged to have been implicated, so that in fairness they may be tried together. If the attorney for the United States thinks so, all that he has to do is to charge them all in one pleading. It is true that in that event any one of the accused can ask for a sever

ance, but as he has the burden of showing himself entitled to it, the application is seldom made. The exercise of the power of consolidating indictments against separate persons will often be a delicate one, and there will be occasions upon which an appellate court will not be able to agree that the trial judge has rightly exercised it with resulting reversals, new trials, expense, and delay. For all these reasons, prompt, sure, and cheap justice will be furthered by the joint indictment of joint offenders. Those who are not even charged with having united to commit the crime should not be forced, against their will, into a common trial. There will be few cases in which there was in fact any concert in wrongdoing in which it will not be possible fairly to draw a joint indictment for the substantive offense or for conspiring to commit it. The suggestion in the government's brief that ten persons may be caught committing the same crime at the same time and in the same place and in the presence of the same witnesses, and yet without there having been any concert of action among them, is doubtless conceivable in the sense that all things are possible; but it scarcely seems probable that prosecuting officers will often have to deal with such a state of facts. On the other hand, the fair, swift, sure, and cheap administration of criminal justice, in our view, will as a rule, be promoted and not hindered by adhering in this matter to what has been the immemorial practice sanctioned as that has been by what

was said or decided in Durkee's, McElroy's and Goldberg's Cases, supra, that is by refusing to compel separately indicted individuals, against their objection, to go to a common trial.

It follows that the judgments below must be reversed, and the cases remanded in order that each of the defendants may be given a new trial.

Reversed.

alcohol, held guilty of conspiracy to violate National Prohibition Act, tit. 2, § 18 (Comp. St. Ann. and sold by them had been rendered unfit for Supp. 1923, § 101381⁄2i), though alcohol bought beverage use by formula approved by govern

ment.

2. Indictment and information

184-Indict

ment charging conspiracy with person unknown held not at fatal variance with proof showing one known person was unnamed (National Prohibition Act, tit. 2, § 18, 41 Stat. 313 [Comp. St. Ann. Supp. 1923, § 101381⁄2i]).

Indictment charging defendants and other persons unknown with conspiracy to violate National Prohibition Act, tit. 2, § 18 (Comp. fatal variance with proof showing grand jury St. Ann. Supp. 1923, § 1013821), held not at must have known that particular person unnamed was a conspirator.

3. Indictment and information

101-Name

or description of person which may identify crime should be given accused, and failure may warrant inference that crime charged was not proved.

If name or description of person, other than defendant, may serve to identify crime charged, accused is entitled to be told it, and in such case, where grand jury denies knowledge of name or description, evidence showing that it was fully informed warrants inference that offense proved is not offense charged.

In Error to the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge.

Neufield T. Jones and another were convicted of conspiracy to violate the National Prohibition Act, and they bring error.

firmed.

Af

(Robert T. Scott, of Washington; D. C., on Wm. J. Neale, of Washington, D. C. the brief), for plaintiffs in error.

A. W. W. Woodcock, U. S. Atty., of Baltimore, Md.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

ROSE, Circuit Judge. The plaintiffs in error were defendants below and will be so styled here. They, together with six other

JONES et al. v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. February 3, 1926.)

No. 2461.

1. Conspiracy 28-Defendants, conspiring to sell denatured alcohol for conversion into beverage alcohol, held guilty of conspiracy to violate Prohibition Act (National Prohibition Act, tit. 2, § 18, 41 Stat. 313 [Comp. St. Ann. Supp. 1923, § 101381⁄2i]).

Persons incorporating a drug manufacturing company with intent, after obtaining denatured alcohol, to sell it to be converted into beverage

themselves, and with others to the grand jury unknown, to commit an offense against the United States; that is to say, to violate section 18 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013821), by selling "a preparation, to wit, specially denatured alcohol, formula 39-B, a more particular description of which is to the grand inquest unknown, designed and intended for use in the unlawful manufacture of intoxicating liquor, containing more than one-half of 1 per centum of alcohol by volume and fit for use for beverage purposes, a