Page:United States Reports 502 OCT. TERM 1991.pdf/209

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Cite as: 502 U. S. 46 (1991)

51

Opinion of the Court

The latter application of the rule made it a regular practice for prosecutors to charge conjunctively, in one count, the various means of committing a statutory offense, in order to avoid the pitfalls of duplicitous pleading. “A statute often makes punishable the doing of one thing or another,. . . sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.” 1 J. Bishop, New Criminal Procedure § 436, pp. 355–356 (2d ed. 1913) (footnotes omitted). See, e. g., Crain v. United States, 162 U. S. 625, 636 (1896); Sanford v. State, 8 Ala. App. 245, 247, 62 So. 317, 318 (1913); State v. Bresee, 137 Iowa 673, 681, 114 N. W. 45, 48 (1907); Morganstern v. Commonwealth, 94 Va. 787, 790, 26 S. E. 402, 403 (1896). See also Schad v. Arizona, 501 U. S. 624, 630– 631 (1991); Fed. Rule Crim. Proc. 7(c)(1) (authorizing a single count to allege that an offense was committed “by one or more specified means”). The historical practice, therefore, fails to support petitioner’s claim under the Due Process Clause of the Constitution. See Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276–277 (1856). Petitioner argues, however, that—whether as a matter of due process or by virtue of our supervisory power over federal courts—a result contrary to the earlier practice has been prescribed by our decision in Yates v. United States, 354 U. S. 298 (1957). Yates involved a single-count federal indictment charging a conspiracy “(1)