Woods v. United States , 174 F. 651 ( 1909 )

PER CURIAM.

In this case six counts of the indictment were submitted to the jury, and a verdict was rendered thereon finding the defendant guilty upon the second, third, fifth, sixth, and ninth, and the court assessed punishment upon this verdict under all said five counts by a general sentence of eight years.

Under the statute involved (section 5209, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3497]) this sentence is one that could have been imposed under each individual count.

We find that count 3, on which the defendant was found guilty, is good in form, sufficient in substance, and that the evidence warranted the jury in convicting thereon.

It is well settled that a general verdict and judgment on an indictment containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment. Claasen v. United States, 142 U. S. 140, 12 Sup. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 596, 14 Sup. Ct. 934, 38 L. Ed. 830; Goode v. United States, 159 U. S. 669, 16 Sup. Ct. 136, 40 L. Ed. 297.

In Claasen v. United States, supra, it is said:

“This count, by a verdict of guilty returned upon it, being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered.”

In relation to such assignments of error as assert reversible error on account of the language of the district attorney in argument to the jury, which it is claimed commented upon the right of the defendant to testify in his own behalf, we are of opinion that as the defendant did not at the time ask to have a mistrial entered, and as at the time the trial judge directed the jury to disregard the statement'of the district attorney, and as the jury acquitted the defendant upon the count to which the district attorney’s remarks particularly related, showing that they were not prejudiced by said remarks, the said assignments of error are not well taken.

■ On the whole record, we find no reversible error, and the judgment of the District Court is affirmed.