Слике страница
PDF
ePub

Opinion of the Court.

practically to merge two or more distinct offenses into one, for the benefit of the latter." See also In re Haynes, Petitioner, 30 Fed. Rep. 767, Parker v. People, 13 Colorado, 155, Williams v. State, 18 Ohio St. 46, and Bishop's New Criminal Procedure, 421, 1042, 1045. Indeed it would seem to require no reasoning to show that if joining separate offenses in the same indictment does not make them one offense so as to require but one sentence, a fortiori a consolidation for the purpose of trial of separate indictments charging distinct of fenses would not have this effect. So the very basis on which the petitioner's contention in this respect rests falls to the ground. If the petitioner's counsel means by the argument to insist that there can be but one punishment for all offenses committed by a person under this statute within one period of six calendar months, the reply is that it was otherwise held in In re Henry, 123 U. S. 372, 374. In that case the court said: "We have carefully considered the argument submitted by counsel in behalf of the petitioner, but are unable to agree with him in opinion that there can be but one punishment for all the offenses committed by a person under this statute within any one period of six calendar months. As was well said by the District Judge on the trial of the indictment, ‘the act forbids, not the general use of the post-office for the purpose of carrying out a fraudulent scheme or device, but the putting in the post-office of a letter or packet, or the taking out of a letter or packet from the post-office in furtherance of such a scheme. Each letter so taken out or put in constitutes a separate and distinct violation of the act.' It is not, as in the case of In re Snow, 120 U. S. 274, a continuous offense, but it consists of a single isolated act, and is repeated as often as the act is repeated. It is indeed provided that three distinct offenses, committed within the same six months, may be joined in the same indictment; but this is no more than allowing the joinder of three offenses for the purpose of a trial. In its general effect this provision is not materially different from that of § 1024 of the Revised Statutes, which allows the joinder in one indictment of charges against a person for two or more acts or transactions of the same class

Opinion of the Court.

of crimes or offenses,' and the consolidation of two or more indictments found in such cases. Under the present statute three separate offenses, committed in the same six months, may be joined, but not more, and when joined there is to be a single sentence for all. That is the whole scope and meaning of the provision, and there is nothing whatever in it to indicate an intention to make a single continuous offense, and punishable only as such, out of what, without it, would have been several distinct offenses, each complete in itself." See also Durland v. United States, 161 U. S. 306.

It may be further observed that if the indictments consolidated for the purpose of trial laid the date of all of the twentyfour offenses as within the same six calendar months the proof of the offense in the ordinary case need not correspond in day and year with the allegation. Any time within the statute of limitations would be sufficient, and as the statute in its terms, like section 1024, is a mere regulation of procedure it could hardly be maintained that this rule of the common law is changed or affected by the statute. So the inquiry whether all the offenses were within the same six months would resolve itself into a question of fact rather than one of law. It was entirely competent according to the Henry case to charge the petitioner with twenty-four separate offenses committed within the same six calendar months in eight separate indictments containing three counts each, and upon conviction the court might pronounce eight sentences, one on each indictment, just as was done in the case at bar, and the judgments would be neither erroneous nor void. Another and the last objection to be noticed is to the action of the court in the order consolidating the indictments. We think it is clear that this inquiry is addressed to a question of error in the proceeding and judgment, and not to the question whether the judgment and sentence are void as without jurisdiction and authority. Ex parte Parks, 93 U. S. 18; United States v. Pridgeon, 153 U. S. 48; Ornelas v. Ruiz, 161 U. S. 502 ; In re Frederick, 149 U. S. 70 ; 1 Bishop's New Criminal Procedure, § 1410.

This question could be reëxamined only on writ of error,

Syllabus.

and in that mode only after exception duly taken and reserved in the court below. Bucklin v. United States, 159 U. S. 682; Logan v. United States, 144 U. S. 263.

We conclude therefore that there was no error in the judgment of the court below, denying the writ, and the same is accordingly

Affirmed.

HUMPHREYS v. THIRD NATIONAL BANK OF CINCINNATI, OHIO.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DIVISION OF THE SOUTHERN DISTRICT OF OHIO.

No. 358. Argued May 13, 1896. — Decided July 8, 1896.

In an action at law in a Circuit Court of the United States where a jury trial is waived, and the trial court makes a finding which involves mixed questions of law and fact, and is general in its form, nothing is open to review on writ of error in a Circuit Court of Appeals except the rulings of the trial court in the progress of the trial, and such rulings do not include the general finding of the trial court, which performs the office and has the effect of a verdict of a jury, and is conclusive as to the facts found.

When a party to an action at law in a Circuit Court of the United States waives a jury and agrees to submit his case to the court, it must be done in writing, and if he wishes to raise any question of law upon the merits in the court above he should request special findings of fact by the court framed like a special verdict of a jury, and then reserve his exceptions to those special findings if he deems them not to be sustained by any evidence; and if he wishes to except to the conclusions of law drawn by the court from the facts found he should have them separately stated and excepted to in this way; and in this way only is it possible for him to review completely the action of the court below upon the merits. A general finding in favor of the party is treated as a general verdict. A general verdict cannot be excepted to on the ground that there was no evidence to sustain it. Such a question must be raised by a request to the court to direct a verdict on the ground of the insufficiency of the evidence.

An agreement by a creditor to receive something different from that which is owed, in full settlement of his claim, does not make a good plea in bar unless the agreement has been fully performed.

Where a judgment is relied upon as res judicata in so far as it relates to

Syllabus.

the allowance of certain credits, it is proper to admit oral evidence to show how the credits in the judgment came to be allowed and what they were allowed for if such facts do not appear upon the face of the judgment itself.

A bank held certain notes upon which H. & Son were the second indorsers. The maker and the first indorser became insolvent before the maturity of all the notes, and H. & Son, being desirous of making a settlement with the bank, entered into a compromise agreement in writing by which the bank agreed to receive in full of its claim twenty-five per cent of the amount, evidenced by two compromise notes for $3,000 each due respectively in sixty days and twelve months. The notes were secured by a mortgage of land which authorized the bank to sell and convey the same upon the failure to pay said notes, or either of them, at maturity. It was further agreed that the bank might hold the original notes and that, upon the failure of H. & Son to pay the two notes in full at their maturity, the amount which might have been paid on those notes by H. & Son, or by the sale of the real estate, should be applied as a credit upon the original indebtedness, and that the bank should have the right to enforce the full payment of the balance due on the original debt against H. & Son. The two notes were given as provided, but neither was paid at maturity, although part payments were made from time to time after the notes had matured. Releases were made by the bank under the trust deed to enable parts of the real estate to be sold, and the proceeds were credited on the two compromise notes. Requests were made by one of the members of H. & Son from time to time for an extension of time on the two compromise notes, and, while a formal contract to extend the time was always refused, leniency was shown by the bank. The total credits upon the two notes aggregated at the last payment about $4,000, leaving a balance due of $2,000, with interest. Eighteen months after the last credit the bank sued H. & Son on the original indebtedness. There was a delay of nearly two years longer, and then the bank brought a second suit on the original indebtedness, but only obtained service on H., one of the firm of H. & Son. Eight months after the second suit was begun H. tendered payment of the compromise notes. Held, (1) That evidence as to what extent H. was insolvent at the time of the agreement with the bank was inadmissible, inasmuch as the extent of his insolvency was a circumstance altogether too remote to have any bearing on the issues in the case; (2) that it was not error to refuse to permit H. to testify that he had procured money with which to pay the notes from his brother and his mother, and that he had agreed to repay them for these advances, inasmuch as the payment itself was a sufficient change of position to sustain an estoppel, if otherwise it could be sustained, and the fact that in making such payments he borrowed the money from some one else did not add to the force of the estoppel; (3) that under the agreement it was not necessary for the bank to tender a release of the mortgage, or tender back the compromise notes; (4) that

Statement of the Case.

the agreement meant that, if H. did not pay the compromise notes, the security which had been given to pay them, and the partial payments which might have been made on them, should inure to the bank for its benefit in the collection of the original indebtedness and should be applied thereon; (5) that the bank did not by its leniency forfeit the right ultimately reserved to it in the contract of returning to the original indebtedness should H. not pay the compromise notes; (6) that H.'s final tender of payment was not payment within a reasonable time, and was without effect; (7) that there was no ground in the case whatever for any claim of waiver, election, and estoppel; and (8) that a judgment for the bank for the full amount of the original indebtedness, less credits for payments on account, should be sustained.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, District Judge.

This was an action at law by the Third National Bank of Cincinnati, Ohio, to recover the amount due on fourteen promissory notes, aggregating about $24,000, from A. E. Humphreys, a member of the firm of Ira A. Humphreys & Son, who were indorsers on said notes. The notes were made by the Boyd Manufacturing Company, a corporation, to C. W. & S. G. Boyd as payees, and indorsed by them to Ira A. Humphreys & Son and by the latter firm indorsed to the Third National Bank. The notes were made in the latter months of 1886 and the early months of 1887, and by their terms were payable during the months of March, April, May, and June of 1887. They were not paid at maturity, and the liability of the indorsers was fixed by demand, notice, and protest. The maker and indorsers of the notes became insolvent before the maturity of all the notes, and Ira A. Humphreys & Son, being desirous of making a settlement with the Third National Bank, entered into an agreement the important provisions of which were as follows:

"The said, the Third National Bank of Cincinnati, Ohio, agrees to fully release and discharge the said Ira A. Humphreys & Son, as indorsers upon the several notes herein before described, upon the payment by the said Ira A. Humphreys & Son of twenty-five per cent of the indebtedness represented by said notes. The said sum so agreed to be paid by the said Ira A. Humphreys & Son to be evidenced by two promissory

« ПретходнаНастави »