Morris v. United States, 12 F.2d 727 (9th Cir. 1926)

*728 Maxwell McNutt and C. A. Linn, both of San Francisco, Cal., for plaintiffs in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

Against each of the first two indictments demurrers and motions to quash were interposed on the ground of misjoinder of causes and of parties, in that in the first count in each both defendants were charged with making a false return of income, while in the second count in each but one defendant was charged with perjury in making a false affidavit to the return. Clearly there was no abuse of discretion in the court's ruling. The joinder of the charges of making false returns was permissible under section 1024, Revised Statutes (Comp. St. § 1690), for they embraced two or more acts or transactions connected together and of the same class of crimes. The plaintiffs in error rely on McElroy v. United States, 164 U.S. 76, 17 S. Ct. 31, 41 L. Ed. 355, where six individual defendants were indicted and charged with assault with intent to kill on April 16 and an assault with intent to kill another person on the same day, arson of the dwelling house of another on May 1, and three of the defendants were charged with arson of the dwelling house of still another on April 16. The court held that such a joinder cannot be sustained where the parties are not the same, and where the offenses are in no wise parts of the same transaction and not provable by the same evidence. But such is not the case here. The defendants were charged in each indictment with making false partnership income returns and one of them was charged with making false affidavit thereto. These charges grew out of the same transactions. The falseness of the returns and the falseness of the affidavits were provable by the same evidence, and both defendants might properly have been charged with complicity in the perjury. But in any event the joinder of counts for perjury with counts for making false returns is no ground for reversal in a case where, as here, the jury acquitted the defendants on all the perjury counts. Commonwealth v. Adams, 127 Mass. 15; Ketchingman v. State, 6 Wis. 426; State v. Morris, 58 Or. 397, 114 P. 476; State v. Solon, 247 Mo. 672, 153 S.W. 1023; Myers v. State, 92 *729 Ind. 390; Reed v. State, 147 Ind. 41, 46 N.E. 135.

Error is assigned to the denial of the petition of the defendants for the suppression of evidence and the return of certain of their books and papers. Concerning this assignment, all that appears from the record is that a petition was filed alleging that certain named officers of the Internal Revenue Department had taken the books into their possession, had examined the same, and had made memoranda therefrom, and had delivered the books to the United States attorney; that the examination and seizure without a search warrant was illegal for all purposes except the determination of the civil tax liability of the petitioners. The prayer of the petition was that the court direct the return of the papers and books to the petitioners, and that the use thereof in evidence be suppressed, to which petition it appears one of the officers of the Internal Revenue Department answered, denying that he or the other named officers had possession of said books or papers, and upon a hearing the petition was denied. No error can be predicated upon that ruling of the court. The books and papers referred to in the petition were not offered in evidence on the trial, and, even if there were error in denying the petition, it was not error which in any way affected the trial of the cause so far as appears from the bill of exceptions.

Error is assigned to the consolidation of the six indictments for trial. Irrespective of statutory authority the consolidation of indictments for trial as was done in this case ordinarily rests in the court's sound discretion, a discretion to be exercised with a view to the avoidance of unnecessary delay and expense and in the interest of both parties, except in a case where the charges are of such a nature that consolidation will result in prejudice to the defendant or embarrassment in the presentation of his defense. Logan v. United States, 144 U.S. 263, 296, 12 S. Ct. 617, 36 L. Ed. 429; Brown v. United States, 143 F. 60, 74 C. C. A. 214. And, if regard is had to the statute, it will be seen that the indictments in the present case alleged against the defendants the commission of offenses of "the same class of crimes" within the meaning of section 1024. Kelly v. United States, 258 F. 392, 169 C. C. A. 408; De Luca v. United States (C. C. A.) 299 F. 741; Goldberg v. United States (C. C. A.) 297 F. 98. The consolidation here was not a unification of the six indictments for trial. No indictment lost its identity. The material rights of the defendants as to each were conserved. All that was done was that the indictments were tried together as a matter of expedition and economy. Separate verdicts were rendered in each, and separate judgments were thereupon imposed. No prejudice could have resulted to the defendants.

The assignment that the court erred in admitting in evidence memoranda taken by the government agents from documents, records, and papers belonging to the defendants brings nothing to the attention of this court, for it fails to specify what memoranda were used or what was the nature of the evidence thus introduced; nor does it appear that such evidence if offered was subject to objection. If the books from which the memoranda were taken were the books referred to in the petition for their return, they were admitted to have been voluntarily submitted to the examination of the officers, and there could be no objection to such officers making and using memoranda taken therefrom, for by thus voluntarily submitting their books to examination the defendants waived the right to object to evidence of the contents thereof. Levin v. United States (C. C. A.) 5 F.(2d) 598.

Also without avail is the assignment that the court erred in admitting in evidence certain books and records of third parties, "to wit, A. I. Hall Company, American Asiatic Trading Company, California Paint Company, S. A. Born Company, City of Paris Company, the Whitehouse, Bank of Italy, Anglo-California Trust Company," and sixteen other named companies and firms, for the reason that such books and records were hearsay, incompetent, irrelevant, and proof of acts and records of third parties not binding on the defendants. Such an assignment of error is wholly insufficient to direct attention to any specific ruling of the trial court. It is insufficient, in that it fails to set out the substance or purport of any of the evidence so admitted. There is also utter failure to show the contents of the said books or records, and, as the alleged errors are not so plain or of such a character that this court should consider them, notwithstanding the noncompliance with its rule 11, they may well be disregarded. Newman v. Virginia, T. & C. Steel & Iron Co., 80 F. 228, 25 C. C. A. 382; Garrett v. Pope Motor Co., 168 F. 905, 94 C. C. A. 334. The purpose of the evidence so obtained from the books of third parties was to show that certain entries appearing on the defendants' partnership books were for the purchase of items of merchandise for the benefit of individual members of the firm and not for the partnership. The books of the firms from which the goods were bought *730 showed only the nature of the merchandise and the amounts paid therefor, and as to these there was no dispute. It was obviously impossible to produce better evidence than the entries themselves, and we are not convinced that the rulings of the trial court were not permissible within recognized principles. Wisconsin Steel Co. v. Maryland Steel Co., 203 F. 403, 121 C. C. A. 507; Matson Navigation Co. v. United Engineering Works, 213 F. 293, 129 C. C. A. 639; E. I. Du Pont De Nemours & Co. v. Tomlinson (C. C. A.) 296 F. 634; The Spica (C. C. A.) 289 F. 436; Straus v. Victor Talking Mach. Co. (C. C. A.) 297 F. 791.

The judgments are affirmed.