Page:Federal Reporter, 1st Series, Volume 4.djvu/905

 UNITED STATES V, NYE. 891 �"the common law for the purpose of ascerlaining the modes of practice, the modes of procedure, the righta of defendants, the rights of the government, the duty of the court and the duty of the jury, and wô administer it according to that. At common law it is admitted that several distinct offences may be joined by different counts in an indictment ; that is, where they are misdemeanors only. That is well settled by Whar- ton's Criminal Law, § 423; Bishop'a Criminal Law, §§201, •204; U. S. V. CaUahan, decided inthis court, 6 MoLean, 96; and the same is recognized in the statutes of the United States, (section 1024, Eev. St.,) which provides: "Whenthere flxe several charges against any person for the same act or transgression, or for two or more acts or transgressions oonnected together, or for two or more acts or transgressions of the same class of crimes or offences, 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 are found in such cases, the court may order them to be Consolidated." �The statute under which this indictment is found, then, does nothing more than could have been done at common law in permitting the joinder, but it does limit the number of separate and distinct offences which may be thus joined to three, and provides that they must have been committed within the same six months. This provision, in regard to the number of offences which may be joined, is no part of the statute which creates the offence. The offence is created perfectly, described perfectly, and completed before this clause of the statute is in existence. This clause, then, relates not to the creation of the offence, for it is well said by learned counsel for the def ence that we have no such thing in the United States as a common-law offence, or common- law misdemeanors. They are ail by statute, and unless they are created by the statute they do not exist. The statute creates the offence, and this provision is no part of the crea- tion of the offence at ail. It only relates to the procedure, to-wit, to the manner in which the district attorney shall ����