PETERS V. UNITED STATES,
127
now made an appeal may be taken and perfected' so as· to be heard at the session of circuit court of appeals on May 24th (the last session before vacation), when the circuit justice is expected to sit. In brief, it may be said that this court is still of the opinion expressed in the earlier cause (if Cruikshank v. Bidwell, 86 Fed. 7, that, by the insertion of the word "quality" in the statute, congress intended to cover more than mere purity and wholesomeness. So interpreted,the statute is in entire harmony with the drift of recent legislation, which, to a continually increasing extent, relegates to governmental determination and control matters which have always heretofore, in this country, at least, been left to the disposition of the individual citizen, or to the operation of natural laws. The questions as to the power of congress to pass such an act, and to provide that the standard of quality should be fixed e.ach year und.er the supervision of the secretary of the treasury, were passed on in the Oruikshank Case. Motion denied. PETERS v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. Februa j ' 13, 1&99.) No. 463.
1.
CRIMINAL LAW-OFFENSES COGNIZABLE BY FEDERAL COURTS.
The courts of the United States do not resort to the common law as a source of criminal jurisdiction, but can only take cognizance of such crimes and offenses as are expressly designated by the laws of congress, and of which they are by such laws given jurisdiction.
2. INDICTMENT-SUFFICIENCY-CHARGING OFFENSE IN LANGUAGE OF STATUTE.
.
Where a statute fully, directly, and expressly, without any uncertainty or ambiguity, sets forth all the elements of an offense, an indictment is sufficient which charges the offense substantially in the language of the statute. The SUfficiency of an indictment is to be tested by ascertaining whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must meet, and whether, in case other proceedings are taken against him for a similar offense, the record shows with accuracy to what extent be may plead a former acquittal or conviction. drawn under Rev. St. § 5209, that said defendant, on a date given, "being then and there the cashier of said association as aforesaid," as such cashier, committed the acts charged, is sufficient to identify and incorporate in such count the averments of the first count that the defendant was, at the time referred to, the duly elected and acting cashier of a certain national banking association, and that such association was at the time existing and carrying on business under the laws of the United States. An averment in the second or a subsequent count of an indictment, TO AVER}IENTS OF PREVIOUS COUNT.
3.
SAME-DESCRIPTION OF OFFENSE.
4.
5.
SAME-MANNER OF DESIGNATING YEAR.
The designation in an indictment of the year in which the offense is laid by Arabic figures is sufficient, and no prefix is essential; the year of the Christian era being understood as meant in all public or judicial documents in this country, unless otherwise expressed. BANKS-FALSE ENTRIES BY OFFICERS-SUFFICIENCY OF INDICT-
6.
NATIONAL MENT.
An indictment against a sole defendant, charging that, as cashier of a national banking association, he caused and procured the making of false entrIes in the books of the bank, by certain clerks under his control all
·914 FElDER1\I;,,·REPORTER; such cashier,. with. Intent ,to, defraud, .sufficiently charges him 'wlth the oft'enS as principal; .the making of such entries by his direction being the same, In legal effect, as his making' them in person. . 7 CRIMIN.t\L LAW-!:lUFFWIEJNCY OF INDICTMENT TO SUPPORT SENTENCE.
Where a verdict· of guilty Is rendered'dn a number of counts, 'R senthat which may legally be imposed on any one tence which,tl,oeS not count is supported by the indictment. if any count is good. Where a so-called "special plea of f4?rpler acqUittal" is made in the form of aplotion to discharge the' defendant and exonerate his bond, based on fortner proceedings in the 'lame cause and court, so that no evidence. thereon is required, and only a question of law is presented, it is, not necessary that issue should be joined thereon, 1I nd it may properly be disposed of by the court, like any other motion.
8.
SAME-PLEA OF FORMER ACQUITTAL-MANNER OF DISPOSITION.
:9.
SAME-REVIEW-WAIVER
A defendant who, after the overruling of a special plea of former acquittal, proceeds to trial without objection as 'to the manner in which the plea wall disposed of, wal\Tes the right to raise the question on appeal. '
of
OBJEC'I"ON.
10.
SAME-FoRMER ACQUI'l'TAL-CONSTRUCTIO:-i OF VERDICT.
In a prosecution against an officer of a national banking association, under Rev. S1. § 5209, for making false entries In the books of the association, and in reports. to the cOD;lptroller, the indictment containing a number of counts, some cbarglng'the making of entries with intent to injure and defraud theassociatiOll, and otbers with intent to deceive the association, and, in case of reports, the comptroller, the jury, on the first trial, rendered a verdict, whicb was set aside and a new trial granted, in which they found tbe defendant "guilty, as charged in the indictment, in falsifying the returns to the comptroller of the currencY,and also bookS of the · · · bank, and on the balance of the counts we do not agree." Held, that such verdict could not be construed as a special verdict, amount· ing to an acquittal. presence of the defendant at every . step of the proceedings, but the presumption is, that his presence, once noted, continues at least during that entire day. Permitting the prosecution to propound leading questions to one of its witnesses is within the discretion of the trial court, and cannot be made the basis of an assignment of error.
U. SAME-TRIAL-PRESENCE OF OF RECORD. It Is not essential that the record of a criminal trial ,should show the
12.
SA}IE-ExAMINATION OF WIT1\"ESS-LEADING QUESTWNS.
13
SAME-EVIDENCE.
For the purpose of showing the falsity of an entry in the books of R national bank purporting to show a special deposit by a county treasurer of $10,000 immediately prior to a report made to the comptroller, which was shown to have been withdrawn a few days later, the government introduced the treasurer as a witness; who testified that he did not remember whether or not he made tbe'deposit. but, if he did SO', It was from public funds in his handll as such treasurer. Held, that it was within the'discretion of the court to permit the introduction of the treasurer's cashbook for the purpose of sbowing whether or not any entry of such deposit or withdrawal appeared therein, although the witness testified that, if he made the deposit, no record thereof would appear. on the books of his office.
14.
I:
While a party is not permitted to impeach his own witness, he is not precluded from showing facts inconsi6tent with some of the statements I ,of the ,witness. " ,
WrI'NESSES'-RIGHT OF PARTY TO 8HCrwINCONSISTENOY ltj TESTIMONY OF HIS OWN Wl'rNEss. '
15.
NATIONAL BANKS-FALSE ENTRIES IN BOOKS BY OFFICER-·WHAT CONSTITUTE.
In a prosecution of an officer of a national bank for making false entriea in its books with intent to deceive the bank examiner, where there
PETERS V. UNITED STATES.
129
was testimony as to certain deposits made which were marked "special," and that the identical money was a few days later returned to the depositors, an instruction was correct which charged the jury that, if they found beyond a reasonable doubt that the understanding between such depositors and the defendant was that the money was only to be used by the bank for the purpose of being shown to the examiner as a part of the funds of the bank, then the entry of such sums as deposits was a false entry.
16.
SAME-INTENT-INFERENCE FROM FACTS PROVED.
A finding as to the intent with which false entries were made in the books of a national bank by an officer of the bank may be based on legitimate inferences from the facts shown, arid where, on the trial of a defendant for making such entries with intent to deceive the bank examiner, it is found that the entries were false; that they were made, 0[' cau;;ed to be made, by defendant; and that their necessary effed was to deceive the bank examiner,-·it may be inferred that they were made with such intent. In determining whpther a charge in a criminal case is misleading, it must be read and considered as an entirety.
17.
CRIMINAL LAW-TRIAL-CONSTRUCTIOK OF INSTRUCTIONS.
In Error to the Circuit Court of the United States for the Western Division of the District of Washington. W. H. Bogle, W. H. Pritchard, and B. W. Ooiner, for plaintiff in error. 'Vilson R. Gay, U. S. Atty., and Charles E. Claypool, Asst. U. S. Atty. Before ROSS and MORROW, Circuit Judges, and HAWI,EY, District Judge. HAWLEY, District Judge. William G. Peters, the plaintiff in error, was indicted by the United States grand jury of the district of Washington for a violation of the provisions of section 5209, Rev. St., which reads as follows: "See. ;-;209. Every president, director, cashier, teller, clerk or agent of any association. * * * who makes any false entry in any book. report, or statement of the association, with intent, in either case, to injure or defraud the assoeiation, * * * or to deceive any officer of the assoeiation or any agent appointed to examine the affairs of any such association; * * · shall be imprisoned not less than five years nor more than ten."
The indictment contained 46 counts. Counts 1 to 22, inclusive, have reference to alleged false entries and reports made with intent to injure or defraud the The remaining counts came under the other provisions of the statute, as to the acts of defendant having been committed with intent to deceive an agent appointed to examine the affairs of such association, or making false reports and statements of the bank to the comptroller of the currency. Upon the first trial of the case the jury found a verdict as follows: ""Ve, the jury impaneled in the above-entitled cause, find the defendant, William G. Peters, guilty as charged in the indictment, in fal"ifying the returns to the comptroller of curreney, and also books of the Columbia Xational Bank, and on balance of counts we do not agree."
Thereafter, in due time, counsel for his discharge upon the following grounds:
moved the court for
"Becau,>e the verdiet of the jury is insuffieient in form, sullstan('e, and law to authorize the entry of any judgment against the defendant other than a
94 FEDERAL RFJPOR'1'ER.
jUdg'i'lent otacqulttaI, and that he be discharged, and do day;'" ,
go
hence without
Tllis motion was overruled, and exception taken. Thereupon a motion was made "for a judgment of acquittal and discharge on said verdict as to counts 1 to 22 of said indictment, both inclusive"; which motion was overruled, and exceptions thereto were allowed. Peters then made a motion to set aside the verdict of the jury and for a new trial, which was granted. The trial of the cause was continued until the next term; at which time, the cause coming on regularly to be heard"The defendant, William. G. Peters, moved the court for leave to file his plell. of former jeopardy to counts 1 to 22, both inclusive, of the indictment herein, and bis plea of former to counts 23 to 46, both inclusive,of said indictment, which leave was given, and said plea was, th!lreupon filed; and the district attortiey moved the court for ·.leave to enter a nolle proseqUi as to counts 2 to both inclusive, of said indictment, which was graJlted1 and a nolle prosequi was thereupon entered,· and :said defendant discharged to said counts 2 to 22. And, thereupon, upon the statement of the district attorney that he intended to prodUce no evidence touching the matters f\lleged In count 1, except .evidence to prove the organization of the Columbia National Bank, its location, and the appointment, qualification, and acting of the defendant as !tscashier, and to prove venue, the court overruled said pleas 'as to count 1, 'and also'as' to count-s 23 to 46, inclusive; to which actjl)n of the court in overruling said pleas as to count 1, and counts 23 to 46, the dE::fendant excepted, and his exception was allowed."
as
The case thereafter proceeded to trial on the remaining counts (23 to 46, inclusive) on defendant's plea of not guilty. The jury found a verdict thereon as follows: "we, the jury impaneled In theabove-entltled case, find the defendant, 'William G. Peters, guilty as charged in counts numbered 23, 24, 25, 26, 2:7, 28, indictment therein contained."
Motions were thereafter made for a new trial and in arrest of judgment.. These motions were overruled, for the reasQns given by the circuit court in U. S. v. Peters, 87 Fed. 984. . The rights of a defendant in a criminal case should, at all times, be carefully guarded. But courts muSt look at the substance, instead of the mere shadow, of the alleged errors. Courts should not be called upon to deal with "trifles light as air." . We have carefully read all the testimony contained in the record, and have arrived at the conclusion that the evidence is suffictentto sustain the verdict of the jury. This being true, there must be something legal, tangible, and real affecting the essential rights of the defendant to justify the court in reversing the verdict of the jury. Error in law must be affirmatively shown. If the plaintiff in error has not been deprived of any substantial right; if he has not been misled; if he has not been prejudiced' or injured in any respect,-he has no real or substantial cause for complaint simply because the old forms and precedents have not been literally followed. He presents for the consideration of this court 40 specific assignments of error, nearly equal in number in the indictment. Twenty-one to the counts originally of these counts were summarily disposed of for want of any proof to
PETERSV. U.NITED STATES.
131
sustain theIn' It may, in the outset, be said that .at least that number of the assignments-some of which, like the counts in the indictment, are ,repeated, to save any question as to there being a proper stateIJlent-may likewise be disposed of. But, notwithstanding tbis fact, the caSe is left as fuil of points as the hide of a porcupine is of quills. It is our duty to carefully examine all questions worthy of consideration, and it will be our endeavor to group them under as few heads as possible, and at the same time to leave none of the important points unnoticed or undisposed of. It must be borne in mind that the national courts do not resort to common law as a source of criminal jurisdiction. Crimes and offenses cognizable under the authority of the United States can only be such as are expressly designated by law. It devolves upon congress to define what are crimes, to fix the proper punishment, and to confer jurisdiction for their trial. U. So v. Walsh, 5 Dill. 60, Fed. Cas. No. 16,636; U. So v. Martin, 4 Cliff. 156, Fed. Cas. No. 15,728; In re Greene, 52 Fed. 104; Swift v. Railroad Co., 64 Fed. 59; U. S. v. Hudson, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 415; U. S. v. Britton, 108 U. S. 199, 206, 2 Sup. Ct. 53l. Every indictment should charge the crime, which is alleged to have been committed, with precision and certainty, and every ingredient thereof should be accurately and clearly stated; but where the offense is purely statutory, and the words of the statute fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, it is sufficient to charge the defendant in the indictment with the acts coming fully within the statutory description, in the substantial words of the statute. Ledbetter v. U. S., 170 U. S. 606, 610, 18 Sup. Ct. 774, and authorities there cited; 10 Enc. PI. & Prac. 483, and authorities there cited. Few indictments under the national banking law have been so skillfully drawn as to escape the hypercriticism of learned counsel. :Many of them might, doubtless, have been made more definite and clear. Our object will be to get at the merits, if any there be. of the numerous objections urged,-to ascertain whether the defendant has been prejudiced by the course pursued by the court; whether any of his legal rights has been invaded or violated; and to brush away the cobwebs of pure technicalities with which the trial of the case, as in all criminal cases, seems to be surrounded. The true test of the sufficiency of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprised the defendant of what he must be prepared to and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. U. S. v. Simmons, 96 U. S. 362; U. S. v. Carll, 105 U. S. 612; U. S. v. Hes2, 124 U. S. 483, 8 Sup. Ct. 571; Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542; Potter v. U. S., 155 U. So 438, 15 Sup. Ct. 144; Evans v. U. S., 153 U. S. 584, 587, 588, 14 Sup. Ct. 934, 939; Batch-
1·32
94 FEDERAL REPORTER.
elot "': U. S., 156' U. S. 426, 15 Sup. Ct. 446; Cochran v. U. S., 157 U.S; 286, 290, 15 Sup. Ct. 628. The essentials of an indictment drawn under the provisions of section 5209 are clearly stated in U. S. v. Britton,107 U. S. 655, 662;' 2 Sup. Ct. 512, 518, as follows: "(1) That the ,accused was the president or other officer of a national banking which was carrying on a banking business. (2) That, being such president or other officer, he made in a book, report. or statement of the association, describing it, a false entry, describing it. (3) That such false entry was made with intent to injure or defraud the association, or to deceive any 3;gent" describing him, appointed to examine the affairs of the association."
See, also, Cochran v. U. 8., 157 U. S. 286, 293, 15 Sup. Ct. 628. The indictment under consideration sets forth all of these essentials in proper manner and form. With these general observations, which are more or less applicable to 'many, if not all, of the points to be discussed, we will proceed to notice some of the specific grounds urged by counsel on behalf, of the plaintiff in error. 1. If is claimed that the counts in the indictment, especially 23 to 46, inclusive, upon which the plaintiff in error was convicted, ,are radically-defective, in this: That it is not in either of said counts alleged that the association, whose books and reports are alleged to have been' falsified, was organized under the national banking laws of the United States; nor that it was an existing banking corporation, or carrying on the banking business, under the laws of the United States,at the time the acts of Peters are alleged to have been committed. The first count in the indictment, in so far as it relates to the points referred to by counsel, reads as follows: "That WilliamG. Peters, on the second day of July, in the year of our Lord one thousand eight hundred and ninety-five, and continuously thereafter, until tlle twentY-fo,urth day of October, in said J'ear, at the county of Pierce, in the district of Washington, was the duly elected, qualified, and acting cashier of the Columbia National Bank of Tacoma, a national banking association organized,' and then and there existing, under the laws of the United States, and then and there engaged in carrying on a general banking business in the city of· Tacoma, in said district, and the said Wllliam G. Peters did then and there, by virtue of his said office and employment as such cashier of said association," etc.
The counts from 23 to 46 are substantially, though not precisely, alike. We copy one of these counts in order to show more clearly the objections urged thereto: "And the grand jury as aforesaid, on their oath aforesaid, do further present that saidWilliarn G. Peters, on the 11th day of JUly, 1895, being then and there the cashier of saW association, as aforesaid, did then and there. as said cashier, willfUlly and feloniously make in a certain book, then and belonging to and in' use by the said association, in transacting its said banking business," etc.
, Counsel admit that a sufficient reference is made by the words "as aforesaid" to identify Peters as the duly-elected cashier, and that the term "said association" identifies the Columbia National Bank of ,Tacoma, argues that they are not sufficient to identify the other portions of the first count as to the organization and ex-
133
istence of the bank, under the laws of the United States. We are of opinion that the references made in the subsequent counts are' sufficient in law. The language used therein could not, under any reasonable construction, be held to refer to but one William G. Peters, and to but one association, the Columbia National Bank of Tacoma, and necessarily includes the entire description of the of· ficer and of the association as set forth in the first count. In Blitz v. U. S., 153 U. S. 308, 316, 14 Sup. Ct. 924, 925, the indictment was drawn under section 5511 of the election law, and contained three counts. In the first count it was alleged: "That on the 8th day of November. A. D. 1892, at Kansas City, in the of .Tackson and state of l\lissouri, there was then and there an election. duly and in due form of law had and held, for choice of representative in the congress of the United States, * * * and that at the said election one 1\lorris Blitz did then and there unlawfully. falsely. knowingly, and feloniously personate and vote, and attempt to vote. in the name of another person, other than his own name," etc.
The latter portion of the first count was held defective, in that it failed to state that the defendant voted for a representative in congress. In the course of the opinion, in reviewing other counts, the court said: "In respect to the third count of the indictment. but little need be said. It is clearly sufficient, for it charges that 'at said election' the defendant voted more than once for representative in congl'ess. Such double voting is made an offense by the statute. The only question that could arise upon the third count is whether the words of the first count, I'eferring to the election had and held on the 8th day of November, 1892, for representative in congress. can be drawn throngh the second count, ,into the third ('Ount. by the words; 'at the said election.' As the election named In the first connt is the only one specifically described in the indictment. there can be no doubt that the words. 'at said election,' In the third count, refer to the election described in the first count."
The present indictment, tested by this decision, is clearly sufficient. 2. It IS claimed that the counts from 23 to 46 are defective.in their averments as to the time when the acts are alleged to have been committed. They vary as to the day and month. The one heretofore quoted alleges "that said William G. Peters, on the 11th day of July, 1895," etc. The contention is that there are no words to indicate that by the figures "1895" is meant "the year of our Lord one thousand eight hundred and ninetJ·five." The ancient rule as to the necessity of designating the era rested upon the fact that two periods were then in vogue in computing time, viz. the reign of the king and the Christian era, and unless the one or the other were designated the time would be uncertain. This rule was therefore upheld with great strictness, and a failure to observe it was held to be fatal. But in the United States no such reason exists, and the rule (although it was adopted and followed by some of the earlier decisions in this country) should not be applied, unless made a requirement by statute. "Cessante ratione legis, cessat ipsa lex." When a year is stated it is not, therefore, necessary to the validity of the indictment that the era, as "in the year of our Lord," or the term "anno Domini." or "A. D.," should be added thereto, because the Christian era will be understood from the mere statement of the year in Arabic figures.
13.4.
14·Gray, 37, 38; l!:Ilglelllan v. State, ,2JI).d. 91,93; 13Vt. 647,65+;, Smith v. State, 58 Miss. 867, 871; Ita,1IY·$tate, 3 Ga. 18, 22. v. State the court said: ,, , ,' dll,,! fa!;t. h.istorically: known, Ohristian, generally t4e, Gre.gonan calendl;U', numbering the years from the b,irth Christ.. This ls' a ChrlstulD' state, and 'has adopted the s:llD.,e; and when a year is' mentioned In our:legislatlve or judicial proceedings,andi no mention is made of the JeWlsh,Maho:ro.etan, or other sYstem' of' reckoning time" alli understand the Cbristlan iCa,Wudar to .be used.. For example, the constitution of the United States declares, that the ImPo;rta-tlon of certain persons shall not be prohibited before the year eighteen hundred' and eight, and that of Indiana declares that Corydon 'shall be the seat of government till eighteen hundred and twentyfive. These are ,Important. documents, demanding the greatest certainty and precision of statement,yetwho ver heard of any person:contending that the yea!'. of the union was meant In one of these instances, and the year of the state in the 'other? To hold an' indictment bad for the omission of the words In ,question can· never be necessary tofhe safety of anY.ofthe,rights of the accused, and would tend to bring odium on judicial proceeding!!'."
O,qP.·"ff
3. The: objections urged, that certain counts are defective, because they do not! charge :Peters as a principal, are without mel'it, in fact or: in·law.· The, indictment is 'drawn against 'Villiam G. Peters, and no one else. He is the principal; the only person accused of committing.the crime. It was drawn so as to cover almost eyel'y conceivable state of'facts that might ,be elicited atthe trial. Several of the counts allege that peters in pE!rson tnade the entries which are alleged to be false.; others charge and, feloniously caused and procured the entries to be made by one A.L. Andrus, W];l0 was a clerk of the banking association;; another, that he willfully and feloniously caused,ditected, and pr9crired to be made by one D. A. Young,'w,ho"!'as a of said under the control of Peters as cashier.' It necessarily follows that the contention,of.counsel that these. counts do not state facts which, if true, make the said Peters guilty' as principal, is, as before stated, wholly without. merit., .Be is as guilty If he directed false entries to be made by the clerkor bookkeeper as if he made the entry in person. . , In Cochran v. 'D. S;,! sul'lra,relied upon by the plaintiff in error, the iq.dictment was and cashier of the 'l;>ank, and the of the opinion had ri:!ference to that particular state of the faCts. '.. . In Agriewv. D. S., 8..36, 52,17 Sup. ·Ct.235,241, the true rule upon this subject i13ciearlystated in an instruction, which was by the court, imd reads as follows: I "The crime of making 'falSe entries by;.an officer of bank, with t/il\ Intent to' defraud,'defilled. in th.e Relvised Statutes of tlie lTnlted States (section 5209), includes any entt'yon me books of the bank' which is intentlp,nallymade ,to repl'esentwhat is not true or does not exist, .wIth the intent either toqecelve Its offiGers. or to defraud the assocIation. The crime may be committed. personally or by direction.. Therefore on a slip upon tlie books of the bank, if the matter contained in that deposit slip is not true, Is a false If the statement made upon the deposit sllp is false, the entry ot It in the bank, and the, books of the bank, is falli1e."
As the verdict ()f 'g:uilt.Y was rendered. upon all the counts, and the sentence did not exceed that which might properly have been imposed
PETERS V. U1\ITED STATES.
135
upon conviction under any single count, such sentence is good if any such count is found to be sufficient. Claassen v. U. S., 142 C S. 140, 12 Sup. Ct. 169; Evans v. U. S., 153 U. S. 584, 595,609, 14 Sup. Ct. 934, 939. The other objections to the indictment need not, in the light of what has already been said, be discussed. 4. It is argued that the court erred in overruling the special plea of the defendant, because no issue in law was joined as to said plea. We have heretofore copied the proceedings in full in relation to this so-called "special plea." By reference thereto, it will be observed that the plea is not, in form or substance, like the ordinary plea "of a former acquittal." It is simply a motion to discharge the defendant from custody, and exonerate his bond. As was said by the learned circuit judge: "It referred solely to proceedings which had been had in the court in which the cause was pending, and concerning which the court needed no evidence, and could take none. The only question presented by the plea was a question of law." It was not a question of fact, to be disposed of by a jury. This, of itself, seems to uS to be sufficient to sustain the action of the court in denying the motion or plea. But the case need not rest on that alone. It is true that the record shows that "no demurrer nor traverse to said special pleas was filed by the government." In the light of the facts in regard to the proceedingI', it was not necessary. But the record also shows that "the sufficiency of said plea was passed upon by the court on the objection (jf the district attorney to its sufficiency, made in open court, and the defendant's counsel made no objection to its consideration by the court." And thereafter, "without any further action taken, or any other disposition of the special pleas hereinbefore mentioned, and without objection from the defendant or his counsel on that ground, a jury was duly impaneled and sworn to try said cause on the issues raised and joined by the defendant's plea of not guilty." 'These quotations from the record clearly show that the plaintiff in error waived his right, if any he ever had, to have his so-called "special pleas" otherwise disposed of before proceeding to a trial upon the merits. In view of the facts set forth in the record, it cannot truthfully be said that he has been deprived of the legal right to have his plea disposed of according to established legal rules. The case of Com. v; Merrill, 8 Allen, 545, is not in opposition to the conclusion we have reached upon this question. There the defendant pleaded a former conviction to two indictments. Whenthe case was called for trial. the defendant objected that the district attorney had filed no replieation or demurrer to the plea, and that there was no issue to be tried. The court, in the course of the. opinion, said: "'l'his defendant was called to trial b('fore the jury on the indictments and his two pl('as thereto, and waS required, against his objection, to give evidence in support of his special plea, though there was no issue thereon; and the judge, on hearing that evidenc-e, ruled that it did not support the and thereupon ordered that the trial proceed upon the plea of not guilty. The judge treated the special plea as if it were before him on demurrer and joinder. · · · The defendant had a right to a trial of his special' pleas according to legal rules, and, as he did not waive that right, a majority of the court are of opinion that he has suffered a legal injury by being deprived of such tria!."
136
J;llea was made in the form of a motion. The defendant to the course by the Gourt, and waived his d gflt1,if. .. h ad, byconsent g· to go t.a trfal.upon his plea of not .. ...in g\lilty, The assignments of error updn this point are not well taken. 5. In connection with the point last discussed, it is claimed that the verdict of the jury on the first trial to an acquittal, and that the court erred in refusing to discharge the defendant. The language of the verdict cannot be legally construed so as to sustain the position,eop.tended for by the plaintiff in error, that it is only a special verdict, and does not affirmatively.spow that the defendant made the entries in the returns to the comptroller of the currency, and in the books of the bank, with the intent to deceive the bank examiner or comptroller. It is a contortion o.f the language, unjustifiableby any known rtile of interpretation, to assert, as counsel does, that the onl;}' effect of the verdict is as if it read: "We find the defendant guilty as charged In the to this extent: that he the returns to the comptroller, and also the books of the bank." No sueh limitation can be injected into the verdict. The verdict was general, not special. The jury found "the defendant, William G. Peters, guilty as charged in the indictment, in falsifying the returns to the comptroller of the currency, and also books of the Columbia National Bank." The indictment, in the counts from 23 to 46, inclusive, consisted of four distinct charges: (1) That defendant made a certain entry in the books of the bank or reports to the cOJ:nptroller; (2) that the entry so made by the defendant was false; (3) that defendant knew it was false when he made it; (4) that such entr·y was made.by defendant with intent to deceive the bank, or (in the' case of the reports) with intent to, deceive the comptroller of the currency. As to these counts, the jury found the defendant guilty as charged in the indicb:pent. The other counts (from 1 to 22, inclusive) charged the acts to have been committed by the defendant "with intent to injure and defraud the association," and upon these counts the jury did not agree. These counts before the second trial were dismissed. It is apparent, from this plain statement of the facts, that the court did not err in refusing to discharge the defendant upon the counts from No. 23 to 46, inclusive. Further comment is unnecessary. But it is deemed proper to say that the recent case of Selvester v. U. S., 170 U. S. 2f32, 18 Sup. Ot. 580, might be examwith profit In that case the plaintiff in error was indicted for alleged violation of Rev. St. § 5457.' The indictment contained four counts. The first charged the unlawful possession of two counterfeit dollars; tlle second, .the illegal passing and uttering of the same; the third, the unlawful passing and uttering of three pieces of like nature; and the fourth, the counterfeiting of five like coins. The record shows that, after the jury had retirejl, they returned into court, and stated that, while they were agreed as to the first three counts, they could not do so as to the fourth,and the court was asked if a verdict to that effect coulg. be lawfully rendered. They were instructed that it could. be, and thereafter returned a verdict as follows': "'Ve, the jury, find James Selvester, the prisoner at the bar, guilty on the first, second, and third counts of the indictment, and
137
disagree on the fourth count of the indictment,"-which verdict was received and the jury discharged. All the justices agreed that the failure of the jury to return a verdict on the fourth count did not affect the validity of the verdict rendered on the other counts, or the liability of the defendant to be sentenced on that verdict. The majority of the court, after reviewing many authorities, were of the opinion that where the jury rendered a verdict of guilty on some of the counts, and the verdict was silent as to the other count, the discharge of the jury would amount to a second jeopardy as to the charge with reference to which the jury had been silent. They added: «But such, obviously, is not the case where a jury have not been silent as to a particular count, but where, on the contrary, a disagreement is formally entered on the record. The effect of such entry justifies the discharge of the jury, and therefore a subsequent prosecution for the offense as to which the jury has disagreed, and on account of which it has been regularly discharged, would not constitute second jeopardy." A minority of the couct were of opinion that, the defendant having been sentenced under the counts upon which he was found guilty, the effect of such conviction and sentence disposed of the whole indictment, and operated as an acquittal upon the count on which the jury failed to agree. The court did not err in overruling the motion of the plaintiff in error in arrest of judgment. 6. We are now brought to a consideration of the alleged errors occurring during the second trial. It is claimed that the record does not affirmatively show that the defendant was present at "every step of the triaL" We will again look at the record, and ascertain the facts upon which this claim is made. The record made on the 9th day of November, 18!}7, reads as follows: "Kow, on this day, this cause came regularly on to be heard: Wilson R. Gay, Esq., United States attorney, and Charles E. Claypool, Esq., assistant United States attorney. appearing for the prosecution, and D. W. Coiner and W. H. Bogle, Esqs., appearing for the defendant. * · · Counsel for each side haVing announced their readiness for trial on the remaining counts of said indictment, a jury was called, and the following nampd persons were examined and duly sworn to try the case: · · · Thereupon the trial duly proceeded until the hour of adjournment. when. by consent. the jury waR admonished by the court, and allowed to separate until the incoming court to-morrow- morning."
The record made on the 12th day of November, 1897, after stating the presence of the judge, reads as follows: ":"ow, on thi!'; day, this cause came on for further trial. The jury having been called, the trial duly proceeded to the conclusion; Whereupon, after argument of counsel, the jury was duly charged by the court. and retired for deliberation upon its verdict; and thereupon, after due deliberation, the jury returns into open court. and, haVing been called, in the presence of the defendant, present to the court a verdict, in the words and figures following."
It is claimed that the record of the proceedings on
These are the only entries in the record referred to by counsel. 9th does not show, except by inference, that the plaintiff in ert'or (defendant in the court below) was present when the jury was examined, and sworn to try the case, and that the record on November 12th fails to show his presence while the testimony was being intr.oduced, or at the time when the instructions were given to·
94 FEDERAL ,ttEPORTER.
the jury. No principle of law, relating to criminal procedure, is better I!!ettled than that, in nothing should be done in the absence of the prisoner. It is his unquestioned right "to be .confronted with his a<;cusers and witnesses." Rebas the legal right to be present when the jury are hearing his case, and at all times. the proceeding of the trial, when anything is done which, iIl,any manner affects his right; and, as ::t general rule, it is true that,' his personal presence is necessary to protect his rights, .the record ought to show. the fact of his presence. Lewis v. U. 8., 146. U. S. 370, 372, 13 Sup. Ot. 136, and authorities there cited. It is the duty of clerks to see that the record. speal{s the truth .concerning this fact as well as others the trial. A strict observance of these rules by the ll,l.inill.terial officers. Chllr,ged with this dnty would certainl.v, tend to relieve the m'uch trouble and annoyance. But what must the record show? What entry must be made? In general terms, it may be stated thatthe, minutes of the court should affirmatixely show everything which is essential to the validity of a criminal The record of each day should show the presence of the,<;ourt and its officers, of the respective attorneys, of the defendant, and of the jury, and then state ,the proceedings in the order of, tpeir OCc,uffence. , We .must not be understood as intimatingt.beat, if t,lieproceeding:;; are not entered in,this precise form, the would defective, but simply as . a proper form of, Elvery case lUnd, of course, stlJ.nd or bl}' its Qwp,particular f{iets, as shown by the record. When thelTecord does ,affirmatiyely th3:t,the .d,efendant was present, »nnecRssq.ry to fact which is taken. dll,ring the Q.ay. ,It would be absurd that every time a is sworp, a)qot,qn made, a ruling lii:plotmced, aJ:!. exception noted, an instrmctiongiven, leave of the court fora juror to retirein"'charge of atfofficer for a few ;minutes(orany other step Wthejourllal, must affirmatively show that "the was then and there personaI1ypresent.", The law never requires, ,even in a criminal, trial, vain. and "useless things to be doile.' Our attenti6nhas not been called to any case which holds that a record which omits noticing the presence of the defendant: taJdmdnring ,the day when his presence, as in the present case, wqs<once regularly entered in the minutes, is insuffident. All the cases which discuss this question that the fact of the defendant's presence need not be repeated at each recorded step. Jefl;riesv.Oolll., 145, 154; Grimm v. ]?eoplel 14 Mich. 301, 308; State v.,'Wood, 17 Iowa, 19,21; Folden v. State, 13 Neb. 328, :332, 14 N. W:412; State v.Le'wis,69 Mo. 96; TerritOJ;y v. Yar,berr'Y':l N.)d.;l91,457; Irvin v"State, 19 Fla. C?m-.:, '30,Gl'at.845, $51;' Y. Com., Va. 7811 People,19 N. Y. 549, 552; State v. Crat()n, 0,165, :1,68; v. 'People, 33111. 276, 284. As in state (FIll,) 11 South: '521:
,<
v.
"It is not indispensable that tije record shoul4 Show,by,a direct affirmative recital, ·tfe presence of the each, Il,nd evflry step taken in
the trial, although such is necessary., This fact will sufficiently appear if the record affirmatively shows either expressly or intendment, or in substance, that he was present in person durmg the tnal.
In State v. Lewis, the court said: "It is also alleged that the record does not sbow affirmatively that tbe defelldant was present when the verdiet was rendered.. It does s,how that he
was present at the opening of the court, on tbe day the verdict was rendered. It never Was decided by this court that tbe record mustaffirmlltively show tbat the defendant is present at every hour of the day, or at every step of the proceeding on that day. It is sufficient that be was preseJ;lt when the court I!1et, and his absence will not be presumed."
We therefore decline to indulge in the presumption that the defendant was allowed to depart after his presence was noted, and that he remained absent during the balance of the day, or that he was only present when the court was opened, or when the jury retired, or when the jury returned with a verdict, as the case may' be. It is just as necessary to show that the jury and the were present during the trial as it is to shuw that the defendant was present, but their presence need not be repeated "at every step" of the proceedings. The presumption, if any is to be indulged in, would be that a presence, once noted, continues at least during the entire daY; Without further elaboration, our conclusion is that the point urged by counsel is without any foundation in the fa,cts, as shown by the record; that it cannot be sustained upon any substantial reason; and is not supported by authority. 7. It is contended that the court erred in permitting the government to ask and prove by its witness A. D. Andrus that he had testified at the first trial that certain entries alleged to be false, in the books of the bank, were in the handwriting of the defendant. The witness Andrus was the teller of the bank. He testified, generally, that he was familiar with the handwriting of Mr. Peters. When questioned as to who made the figures "20," which appeared in the bank's books, whereby a certain entry was changed, oppos.ite the words, "Gold in vault," from. "200," which was in the handwriting of the witness, to "20,200," he said: "I am not certain whose figures they are. * * * 1 would not like to state positively about it. * * * I should say they look very much like his [Peters'] figures." The figures in the record ·opposite, "Silver in tray," which were in the witness' handwriting, were "2,838.05," and were changed by placing a figure "2" in front thereof, so as to read "22,838.05." 'When asked as to whose handwriting this first figure "2" was, he said: "I do not know. I think it resembles his [Peters'] writing. I suppose anyone could make a figure '2' good deal like that." Another entry in the book, which was made by the witness, of "2,775.02," was changed by making a figure "3" in front, so that it would read "32,775.02." vVhen asked in whose handwriting the figure "3" was, he said: "I am not certain whose that is." And as to whether it resembled Mr. Peters' figures, he said: "I think it resembles it somewhat." In reply to similar questions concerning the figures that had.been changed in the books, the witness said: "I think it looks very much like Mr. Peters' figures. * * * I think it is in the same handwriting
14.0 that
rest Q,f those other figures were that I testified to here. "Q. And that is whose? A. Resembles Mr. Peters' ha.ndwriting." The witness. was then asked if he did not, at a former trial, with reference .to these same entries and ,changes, "testify positively that those figures were in Mr. Peters' handwrit· ing." The Witness answered: "I remember testifying that some figures in this book were in his handwriting, but I don't remember whether if. was this figure or not." Then certain entries were pointed out to him, and his testimony at the former trial was read, where he!had positively testifi.ed that the figures were in Mr. Peters' handwriting. The witness in reply said: "Why, I think that is my testimony, if it was 'all taken down cOFrectly." We have made this somewhat extended reference to the answers given by the witness for the purpose of showing that the question as··to his testimony at the former trial was not asked for the pur.pose of impeaching the witness, as claimed. It did not tend to impeach him, for he did not at the present trial at any time state that the changes were not made in the handwriting of :Mr. Peters. It was not aUowed for the purpose of refreshing the memory of the witness. True, this was attempted to be done, but the court promptly and properly said to counsel: . cannot refresh his memory of the handwriting by what he testified to at the former tIda1. You must test his knowledge of the handwriting at the present time." Again, the court said: "He can refresh his memory of that handwriting: by examining the figures, or examining Mr.,. Peters' known or admitted writing or figures." And the examination of tlie witness then proceeded upon the lines suggested by the' COVrt. The case does not, therefore, fall within the rules announced in Putnam v. U. S., 162 U. S. 687, 694, 16 Sup. Ct. 923, which relate solely to the fact that the former testimony would be inadmissible for the purpose of refreshing the memory of the witness. The' questions asked the witness were leading. But, as was said in St. Clair v. U. S;, 154 U. S. 134, 150, 14 Sup. Ct. 1002, 1008: "In such matters, much must be left to the sound discretion of the trial judge, who sees the witness, and can therefore determine, in the interest of truth and justice, whether the circumstances justify leading questions to be propounded to a witness by the party producing him." 8 Enc. PI. & Prac. 86, and authorities there cited. . 8. The next contention on behalf of the plaintiff in error is that the court erred in admitting in evidence the cashbook of John B. Hedges, county. treasurer of Pierce county. Like contentions are also made as to the admission of the books of J. W. McCauley, city treasurer, and of the books of the German-American Bank. These alleged errors will therefore be considered together, selecting the one relating to the entry, "J. B. Hedges, special," as being the most tlie plaintiff in error, for principal discussion. The entries which are alleged in the indictment in counts from 23 to 46, incl1}sive, to be false, and the reports of the same as made to the comptroller of the currency, which are likewise alleged to be false, concern three principal transactions:. (1) That a prei.:
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tended deposit was entered as having been made by the GermalJ.:American Safe-Deposit & Savings Bank with the Columbia National Bank, in the sum .of $20,000, on July 10, 1895; (2) the other two transactions relate to the alleged deposits of $10,000 each in the name of "J. B. Hedges, special," and in the name of "J. W. McCauley, special"; and it was contended at the trial by the government that no such deposits were in fact ever made. In one of the counts of the indictment it was charged that, in order to make a favorable showing of the condition of the bank on the 28th of September, 1895, in response to a call of the comptroller of the currency, false entries were made, as of the 25th, to show that upon that date J. B. Hedges deposited $10,000 "special," which was drawn out by him on the 30th of September, 1895, and that on the 26th day of September, 1895, J. W. l\IcCauley deposited $10,000 "special," which was drawn out by him on the 30th day of September, 1895. And under various other counts the defendant was charged with alterations of the books to make it appear that $:!O,OOO was, by such deposits, added to the sum total of the cash on hand in the bank. J. B. Hedges, with reference to these matters, was called as a witness on the part of the government, and, among other things, testified as follows: "I was living in Tacoma on September 25, 1895. I knew of the existence of the Columbia Bank. I don't remember whether on the 25th day of September, 1895, I made a deposit in the Columbia ::'\ational Bank, 'J. B. Hedges, special,' $10,000, or not. I had no such amount of my own personal money on deposit. I have made a number of deposits such as 'J. B. Hedges, special,' but I don't know whether I made a deposit on that date or not. I don't remember how it would he marked. I did have money entered to the account of 'J. B. Hedges, special.' I do not remember the dates nor the time. '" '" '" In making deposits of that kind, I would receive a deposit slip, which I would take away with me, and hold it until I got ready for the money, and go and get the money, and then I would give the deposit slip to the officers of the bank, and they would give me the money. '" * * I always returned the slip and took the money. ... ... ... When I took $10,000, if I ever did, to any bank. during the fall of 18G5. it was public funds,-state, county, and different funds going to make up that amount. \Vhen I took an amount like that from the public repositories. I would go and put it in my own uame, 'special,' I kept no record at all of it in my office. No record was necessary. * * * If the records of the bank would show that there never had been. or pretended to be, more than one deposit in my name marked, '.J. B. Hedges, special.' that would not refresh my memory, or aid me to say that I never had made any, or, if at all, more than one; it would have no weight with me."
After giving this testimony, his caShbook as county treasurer was produeed; and after he had testified that he believed the book to be correct, and that he had had general supervision of it and cheeked it up, and had therein kept the transactions of his office, he was allowed, over the objection of the plaintiff in error, to testify as to the entries of his books on September 24th to September 30th, inelusive, and from this evidence it did not appear that any sum of $10,000 had been entered upon his books, either as deposited in the bank, or as drawn from the eash on hand, or as restored to the cash on hand. After some testimony concerning said entries, the witness adhered to his former testimony in regard to having made a deposit about that time, and again stated that, if such deposit was made, his testimony
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same would not' in 'Yay be fact, thereof had been made in his book. .' ThetesRmQny of treasurer, aJid of Mr. McCauley, city treasurer, which is tn many respects similar in its genexhibits upon Jts tquse a mild term, a most reeral markable and, extraordinary transactiO,ll on the part of these officials, they were, with public funds. Neither of these witnesseEl ,testified positively about taking the sum of '$10,000 to the Columbia Nl;ltiona.l Bank, or to Mr,. Peters, the cashier, and receiving a deposit slip therefor at thedateinention,ed.They say they do not remember; might have done ,so.' .Both were unwilling to swear positively eitJier ,that they did or did not makel\luch a deposit at the time mentioned. 'McCauley testifiell: " "To save my life, couldn't tell 'you whether. I made a deposit of $10,000 or not. I would not say that I did not. '" '" '" I made deposits, and took a deposit slip made out by the cashIer and delivered to me. '" '" '" I have a faint recollection that I did make one or more deposits in the Columbia National Bank;' and received a deposit slip on which the word 'special' was written, but I would not testify positively. '" '" '" I have had a good deal of trouble in the last two years, '" '" '" and my memory has been somewhat weakened.", '
From such statements it is apparent that the United States attorneywas at the general trend of the testimony of his own witnesses,and sought, in various ways,to bring out all the facts regarding tbismatter. The books were not offered as substantive evidence againsfthe plaintiff. in error, but were introduced and allowed for the purposepf showing what the witness 'did or did not do with reference to,this money; what accounts thereof he kept,or what entries he made, if any. Courts are vested with much discretion in the admission of testimony, under such circumstances. The books were admissible in order to inform the jury as to all the facts, so that they might judge, from all the circumstances and surroundings, of the probabilities or improbabilities, and reasonableness or umeasonableness, of the statements made by the witness that he might have made such a "special deposit," although he could not positively swear that he did. The government had the right to have the witness explain all the facts, so that the jury could, from the whole story, ascertain the truth. The object, end, and aim of all jury trials is to ascertain the truth; and, if the jury has the right (which is unquestioned) to take into consideration the witness' manner on the witness stand,his hesitation and refusal to make any positive statement, for want of recollection,-we see no substantial reason why they might not consider that the books kept under his, supervision, and of which he testified he believed to be correct, might. not also be considered, in order to enable them to determine the truth. Was it reasonable to from all the testimony, that Hedges did make a special deposit of, and took a deposit slip for, $10,000 on the date mentioned, without making any note thereof on his own books, which would natu;rally be &upposed to speak the truth, and show where the money of the county could be found, if it had been taken away and deposited in a bank or elsewhere? Of course, tbe witness had the right to explain why no entry was made upon his books; and the jury had
PETERS V. UNITED S'fATES.
143
the right to consider whether the explanation, as given by him, was or was not reasonable and satisfactory. The rule against impeathing one's own witness has never been extended so as to preclude cliunsel from eliciting all the facts from the witness, even though some of the facts thus drawn out might appear to be inconsistent with some other portions of his testimony. There is a clear distinction as to the principles of law which prohibit a party from impeaching his own witness and the right of a party to show an inconsistency in some portions of his testimony. In Hickory v. U. S., 151 U. S. 303, 309, 14 Sup. Ct. 334, 336, the court said: "The party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness." See, also, 1 Greenl. Ev. §§ 443, 444; 1 Thomp. Trials, § 515; 29 Am. & Eng. Enc. Law, 812, and authorities there cited. 9. Finally, it is claimed that the court erred in the instructions given to the jury. On this point numerous objections are urged and argued at great length by counsel. It would serve no useful purpose to notice these points seriatim or to discuss the same in extenso. As before stated, the contention of the government, from the beginning to the end of the trial, was that the amounts represented by the entries alleged to be false had never been deposited in the bank. The weight of the evidence sustains this contention. The teller, bookkeeper, clerks, and other employes of the bank, whose special duties required them, either to handle the money or make an entry thereof in the books, testified it was not there. They did not see it. The accustomed places where the ordinary deposits were kept did not show any such amounts at the time indicated by the entries in the books of the bank which are alleged to be false. The plaintiff in error, however, testified that it was there, and he had the right to have instructions given covering that theory of the case. Peters, after denying that he personally made any of the entries in the book which are alleged to be false, testified as follows: "I have no recollection of this deposit of twenty thousand dollars that appears to have been made 'by the German-American Bank in the Columbia National Bank on July 10, 1895. I have not now the least recollectipll.,about that transaction. .. .. "'When I made the reports, I believed them to be , true, and I still- believe It.; I did not direct any of those entries to be made by anyone, with reference to this twenty thousand dollars deposit by the German-American Bank."
Referring to the account of "J. B. Hedges, special," under c4tte of September 25, 1895, he said: "That deposit of $10,000 was actually made by Mr. He made it on the date it is shown there,-the 25th. I recollect the circumstances under. which that deposit was made. I remember that about that time, or a few days before. .. · .. I went up to Mr. Hedges' office, and had a talk with him about the general affairs of the ba-nk, and we had considerable of a conversation regarding the business of the bank, particularly with reference to getting additional money for the bank. · .. .. At that time I suggested that if it was convenient for him that I would like to have him make an additional deposit, anywhere In the neighborhood of ten thousand dollars. He afterwards made thisdeposlt. It was late In the afternoon. He made it in gold coin. I gave him a deposit sUp as evidence that the deposit had been made. · · .. When he brought it down to the bank, he told me that he might want it in a few days again, and he did not want us to use it unless it
144
became necessary for us to do so. I told him: that I did not thfllk that we would require it; and that 1 would not use it unless it did necessary. · ,. Iput.lt in the safe ofilie bank. I don't think I could remember ,wheretiOouts.in the safe. · · lit . I afterwards paid tha.t money out to Mr. Hedges, somewhere about a week afterwards,-I think the end of the month."
With reference to the account of "J. W. McCauley, special," he said: "I did not make any of the entries of that I know that Mr. McCauley made the deposit represented by that entry. He made it with me. R.efreshing my recollection from the book, I would say that he made it on the 26th of· September. I had a similar talk with him as that I had with Mr. Hedges With, reference to the bank, ahd what we were doing, and it was in response"to that conversation that he subsequently made the deposit. I gave him the slip to evidence the deposit, the same as I had given Hedges. He made the deposit in gold coin. I suppose he brought it in a gold-coin sack.,.· .: · I suppose it was about the same as stated on the book, 'J, W. McCauley, special.' 'When it was fresh in my memory, I did cause entries of those accounts to be made. I put the money that I got from :Mr. McCaUley, in the safe. I don't have any particular recollection as to whereabouts in the safe I put it. I presume it was in the same form as when I rece! veq it, ,I afterwards paid it to him again. · · · I returned to both of these gentlemen, Hedges and McCauley, the same sacks and the same money. · · · I did not use any of these moneys in the business of the bank. I didn't make any of the entries. upon the books with, reference to either of these transactions. I instructed Mr. Young to make the slips and enter them upon the books. I do not remember the date. I think it was. a day or two after we received It. · · · I didn't give him this direction until 2. pr 3 days later. I can't tell you why I did not make it out that night; I just didn't. I didn't think to make It out at that time. I put the money in the safe. ' I didn't hide it. It was not necessary to hide it. I could not tell you what amount of money the bank had on hand before I got that twenty tbousand dollars. · · · I mean to say that with that bank in that condition I might have in the safe twenty thousand dollars or ten thousand dollars from the night of the 25th, and 'ten thousand dollars from the night of the 26th, and not think, to' tell the \;Iookkeepers, and not enter it in my books,until two or three,days afterwards, and then have the book entries made. T]:lOse entries were not made for the purpose of ,having the bank show a larger amount of moneythan It had, nor for the purpose of making these reports to the comptroller of the currency. I probably showed the twenty thousand dollars that was in the safe to McCauley and Hedges. I did not show it to anyone else."
The charge of the court with reference to these transactions is substantially the same. 'We copy but one, which is as follows: "Concerning the Hedges transaction, there is testimony to the effect that that particular 'sum of ten thousand dollars was left witb the bank by J. B. Hedges, for which he received a deposit slip in his name. marked 'special,' but with the understanding between him and the defendant that, if the bank should need to use the money, it might do so. You are to detel'mine from the evidence what 'was the nature of the use that was so permitted to be made; and If the evidence convinces you, beyond a reasonable doubt, that the use so and as understood by the defendant, was to make a shOWing of said money, if necessary, to any bank examiner or officer of the government, as If the same were money beIcmging to the funds of the bank, then you are instructed that the entry of said money upon the books of the bank, as appears the evidence. in this case, was, a false entry'; but if you find that the use so permitted was that the money was to be considered a loan to the bank, or thliJ It might be considered a loan to the bank, or that it should oe miIlgled with the funds of the bank, as an ordinary 'deposit, subject to withdrawal!:lY the ordinary course of business, the entry of such item on the 'books would be lawful and pl·oper." ,.
The jury could not have been misled, as counsel claim, by the use .of the words, "a loan to the bank," to be "mingled with its funds," as an "ordinary deposit." These words were used to illustrate the point that, if the money was left with the bank to be used by it in its legitimate banking business, "the entry of such item on the books would be lawful and proper." This portion of the charge was certainly as favorable to the plaintiff in error as the law or the evidence would warrant. It was the character of the transaction, not the name given to it, that determined its true nature; and the jury were to decide, from all the facts, whether the acts of the cashier, in making, or causing to be made, the entries in the books of the bank, in relation thereto, were "honest" or "criminal." It is argued by counsel that the court erred in giving certain instructions, one inconsistent with the other, in relation to the question of intent. It is true that this question was referred to in different portions of the charge. The court seems to have taken extra pains to inform the jury as to the law upon that subject; but in so doing there was no uncertainty or inconsistency_ The intent of the defendant, as charged in the indictment, must, of course, be proven, either by direct, positive, or independent evidence, or by such facts and circumstances as would enable the jury to draw the inference of guilt, as they legitimately are allowed to draw other inferences, from any of the facts in evidence which to their minds fairly prove its existence. The evidence in this case was, notwithstanding the lack of memory upon the part of some of the witnesses for the government, so clear as to leave no reasonable doubt in the minds of the jury as to the inferences and presumptions which naturally flowed from it, viz. that the offense as charged, in making the false entry on the books of the nank, was committed by the plaintiff in errol' herein with intent to deceive the bank examiner, and that the false reports made him were made with the intent to deceive the comptroller of the currency. The charge of the court fairly, in language to which no possible exception could be taken,submitted this question to the jury. The court also properly charged the jury that "everyone is presumed to intend the necessary consequence of his own deliberate act, and if you believe from the evidence that the entries described in the indictment were false, and that the defendant made, or caused them to be made, and that the necessary result of such entries was to deceive the examiner by the entries in the books, then the defendant is guilty as charged under that count." Is it not reasonable to presume that a cashier of a bank who wrongfully makes 01' causes such entries to be made intends the legitimate consequences of his unlawful act? Is it not manifest from the entire charge that the jury could not have been misled by the language used in another part of the charge, that "any and every false entry upon the books used in the transaction of its current business is calculated either to mislead its officers or work injury to the bank"? This was but a general statement. Another portion of the charge was so deft· 94F.-IO
.146 nite
that the juryc.o)lld not possibly have.,been misled. other things, the court said: ,' ,.. , .
"The counts charging the with making false entries in the books of the bapk allege that such entriell were made, or caused to be madl,'!, by the defendant, with the specific inteiIt on the. part of the defendant to deceive any agent wh.o thereafter be appointed by the comptroller of the currenoyto eXamine the affairs ()f8llid association or bank. TM offense charged is a statutory. ()ne, lilnd the: specifi,c intent alleged ]11 the indictment is a substantive ()r essential part,. and one'of the ,ingredIents of such offense: and before you can convict the defendant on any of such counts you must find as a fact, beyond any reasonable doubt, that he not only did the acts charged, but that he did them with the specl1k intent on his part to deceive any agent who might thereafter be appointed by the comptroller of the currency to examine the affairs of the bank. It will not justify a conviction for you to find from the evidence, if you should be so inclined, that he did the acts charged with some other intent, no matter how wrongful it might be."
The ins.tructions given in the following-cases support the charge of the conrt, and also the general views we have. expl'essed in regard thereto. U. S. V. Harper,. 33 Fed.4T1, 481; S. v. Means, 42 Fed. 599.; U. S. v. AlIi,s" 73 Fed. 165,171. The charge must be read and considered in its entirety; and, so rea,d and consid· ered, it is manifest couldnof possibly have been mis· led in regard thereto. It is argued. that the court erred in not giving a cC)rrect definition of a "special deposit." :.rhe fact.l'l of this case did,not call for any legal deposit," as that term is ,understood in legitidefinition of a mate banking business. 'J;'be transactions, if they as testified t<> by Peters,c&unot, from any legal standpoip.t, be classed as legitimate. The intent which an act is done more clearly . or explanaand conclusively shown by tlJ. act itself than by any toa,wrongful act, knc;>wingly and tion oUhea,ctor. It isno.. inteptionally committed,that it done with. an innocent intent. It is often the case thattlle of men speak ,their iptentions clearly and truthfullythaJ,1 do words. Uipparent, from the testimony, thilt the "deppsitl'\li,ps" were notgiv":ll. oJ; received for the purpose of ,ma!qng any of the bank. They were uot,. accord,jng to ·the l\fcCauley, alld Weisbaugb, to be entereti,i>1lthe hClOks oft4e co,untY;treasnrel' or treasureJ;;ortbe and extraordinary meth040f business was .if at all, for thepu,rpose of covering .up tha,t r!-otbear the light of day, a,nd..CaDl1ot be by any court, The be used in the money' (lip ,not belong to. the b,ank,., and, if left tbere to by the couldpot,.,in, allY legal sense, ,be manner ,designated as the money of the bllnk, called a':'loan"or a "SP0' cial, deposit." The entryclPthe"bank's books waS. ,evidently designed a;nd intended to deceive the ,bank examiner, and WaS, to all intents and purposes, under the mQlilt fa,vorable light in whish the transactions cap be a "falseentryt within the tJ,lese words .as used in the statute; and any .report to the comptroller of the currency based. upon. such transactions would be a "false report." , , Without furtber discu.Sl'\ipn, our conclusion ifij that the plaintiff in i
UNITED STATES V NIEMEYER.
1-17
error has had a fair and impartial trial; that he has been properly convicted upon the testimony; and that after a careful, patient, and exhaustive consideration of all the points made by counsel, whether herein specifically mentioned or not, we find no error in law in the admission of the evidence, or in the charge or rulings of the court, that calls for, or would justify, a reversal of the case. The judgment of the circuit court is .affirmed.
UNITED STATES v. NIEMEYER et al. (District Court, E. D. Arkansas. 1. April 27, 1899.)
PUBLIC LANDS-CUTTING OF TIMBER-RIGHTS OF HOMESTEADER.
A homesteader, before he has become entitled to a patent to the land, is not authorized to sell timber therefrom for the purpose of obtaining money with which to hire improvements made which the law contemplates he shall make himself. He has no right to sell timber for any purpose from· any part of the land except such as he intends in good faith to put into immediate cultivatlon; and a use of the land for grazing purposes, without plowing it up, is not cultivation, as meant by the law. belong to the United States, and to be occupied under a homestead claim, under a purchase or license from the homesteader, and knowing also that the land from which it is taken is not to be put into immediate cultivaticm, he is presumed to have intended to take the timber unlawfully, and is subject to prosecution therefor.
2. SAME-CRIMINAL LIABILITY FOR -]UTTTlW TIMBER-INTENT. If a person cuts and removes timber from lands which he knows to
'This was a prosecution by the United States of A. J. Niemeyer and Charles Niemeyer for unlawfully cutting and removing, or causing to be cut and removed, timber from public lands of the United States. The defendants were, respectively, president and general manager of the Saginaw Lumber Company, located near Malvern, Ark. They justified the taking of the timber under purchases from homesteaders occupying the hwds from which it was cut. government attacked the good faith both of the homesteaders and the defendants, claiming that the homestead entries were made for the purpose of enabling the defendants to obtain the valuable timber from the lands. There was evidence that three of the homestead entrymen were employes of the lumber company, and that the fourth made his entry at the instance of the defendants. There was also evidence that none of the lands had been put in cultivation, or cleared for cultivation.
Jacob Trieber, U. S. Atty. L. A. Byrne, for defendants. WILLIAMS, District Judge (orally charging jury). This is a trial for the offense of cutting, or causing to be cut, and hauling away, or causing to be hauled away, timber from the lands of the government. The defense is that the lands were homesteads, and that the timber was disposed of by the homesteaders to the parties ,vho are charged with unlawfully having it cut. The case is out of the ordinary run of cases of this kind. It may not require any more consideration at your hands, however, because the testimony is plain, and the law at last is simple. The court will endeavor to make the law plain to you which is to govern you in making up your verdict in this case. The homestead laws of the United States are exceedingly munificent