Page:Federal Reporter, 1st Series, Volume 4.djvu/903

 UNITED STATES V. NTE. 889 �4 Ckiminat. PKocEDunE — MiajoiNDER -- Felonies. — At common law, while separate and distinct felonies could not be joined, yet a mis- joinder did not destroy the validity of the indictment. The prose- cutor might nolle, or the court would eompel him to elect whichof the felonies he would proceed upon. �8. Samb— Section 5480, U. 8. Rsv. St.— Section 5480, U. 8. Rev, St., im- poses no stricter rule ; and where an indictment under that section charges, in different counts, the commission of flve separate and dis- tinct oflences, the court may, in its discretion, permit the district attorney to nolU two of the counts, and proceed upon those remain- ing. �6. Indictment— Matter of Form— Section 1025, tJ. S. Ret. St.— Any �objection to suçh misjoinder, as matter of form merely, is disposed of by section 1025, U. 8. Rev. St. �7. CniMiNAL Procedure— MiBJoiNDEB. — Section 6480, TJ. 8. Rev. St., and �14 and 15 Vict. e. 100, jj 16, 17, compared. �Motion to Quash Indictment. �Channing Richards, U. S. Dist. Att'y, and Richard Dyer, Ass't, for the prosecution. �Yaple, Mooa e Pattison, contra. �Swing, D. J., [orally.) An indictment was returned by the grand jury against the defendant for misusing the post-office. The indictment contains five counts, setting eut distinctly five separate offences. The statute under which thia indictment was found is the 5480th section, which provides as follows : "If any person, having devised or intending to devise any Bcheme or artifice to defraud, to be effeoted by either opening or intending to open correspondance or communication with any other person, whether resident within or outside of the United States, by meana of the post-office establishment of the United States, or by inciting such other person to open communication with the person so devising or intending, shall, in and for exeouting such scheme or artifice, or attempt- ing so to do, place any letter or packet in any post-office of the United States, or take or receive any therefrom, such person, so misusing the post-office establishment, shall be punishable by a fine of not more than $500, and by imprison- ment for not more than 18 months, or by both such punish- ments. The indictment, information, or complaint may Beverally charge offences to the number of three, when oom- ����