Page:Federal Reporter, 1st Series, Volume 4.djvu/906

 892 FEDEeAL EEPOETEE. �prepare his indictments — that he shall not combine in a single indictment more than three separate offencea. �I may say, under the former administration ôf the criminal practice, and in many of the states now, the district attorney prepares his indictments prior to the sitting of the grand jury, and submits the paper thus prepared, or the separate and dis- tinct counts, if he has more than one, with the offenees f ully described, and the grand jury ignores the whole indictment, or several of the counts thereof, and returns such portions of it as they think may be established by the testimony ; but such is not the pradtice of the United States courts; as I under- stand it. �This clause only relates to the procedure and punishment; and, while it limits the number of offenees which may ba joined, it doea not, as in some of the English statutes, pro- vide what -the procedure shall be in case the limit should be exceeded, or what the consequences of exceeding the limit should be upon the rights either of the government or of the defendant, �It is claimed, however, that the eiïect of it is to make the indictment absolutely worthless and void. If that be so, then this indictment must either be quashed or held bad upon demurrer. Let us see whether this is the inevitable effect of this statute. At common law there could be no joinder of separate and distinct felonies. That was as well established, at one period at least of the administration of the criminal law, as if there had been an express statute forbidding the joinder of separate and distinct felonies in the Same indict- ment. And yet it was never supposed that the joinder of several felonies destroyed the validity of the indictment. While the courts -would not permit the party to be tried for two or more felonies in the same indictment, they would not quash the indictment, but would compel the prosecutor to elect the felony he would prooeed to trial upon. The rule is laid down in Wharton, § 216. At common law, in a case of that character, it was always within the power of the prose- cutor, where there was an improper joinder, to get clear of the ����