by John Marshall Harlan

“ One of the grounds for arrest of judgment was that the indictment does not state an offense under the laws of the United States. This point does not seem to be pressed in the brief of counsel. It is without merit. ”

“ The learned assistant attorney general refers to section 1036 of the Revised Statutes, providing that 'on an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury.' He properly insists that that section is not, in terms, applicable to separate indictments, tried together ”

“ It is assigned for error that the court overruled the defendant's motion for a new trial. A refusal to grant a new trial cannot be reviewed upon writ of error. Blitz v. U.S., 153 U.S. 308, 312, 14 Sup. Ct. 924; Wheeler v. U.S., 16 Sup. Ct. 93.
4. But there was error prejudicial to the accused in the instruction to the jury that while they might find a verdict of guilty as to all three defendants on trial, or find some guilty and some not guilty, they could not find a verdict as to some and disagree as to others. ”