ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
Many of the exceptions taken during the trial and the requests to charge which were refused, as well as most of the exceptions to the charge as given, relate to the counts of the indictment which were quashed on the motion in arrest. All these questions are, therefore, eliminated. We shall hence only consider the matters which are pertinent to the remaining courts, and shall examine first the objections made to the indictment generally, based upon the contention that all the counts fail to charge an offence; second, the exceptions reserved to rulings of the court during the trial, the effect of which is to assail the verdict and judgment without reference to the validity of the indictment. In making this examination we shall concentrate the errors complained of in proper order, thus obviating repetition -- for the matters to be considered are all reiterated by way of objection to the evidence, of exception to the refusal to charge as requested, and of complaints of the charges which the court actually gave.
1st. It is contended that no offence is stated against the aiders and abettors, because in none of the counts is it asserted that
they were officers of the bank or occupied any specific relation to the bank which made aiding and abetting possible. The language of the statute fully answers this contention. It provides that "every president, director, cashier, teller, clerk, or agent of any association, who," etc., and adds, after defining the acts which are made misdemeanors, "that every person who with like intent aids and abets," etc. The phrase, "every person," is manifestly broader then the enumeration made in the first portion of the statute. In other words, the unambiguous letter of the law is that every president, director, agent, etc., who commits the designated offences shall suffer the penalties provided; and that every person who aids or abets such officer, etc. The argument is that no one but an officer or an agent can be punished as an aider and abettor, and hence that every person who aids and abets, not being an officer, shall go unwhipped of justice. To adopt the construction contended for would destroy the letter and violate the spirit of the law. For the letter says, "every person who aids and abets," and the proposition is that we should make it say every officer or agent who aids and abets. The spirit and purpose of the statute is to punish the president, cashier, officer, or agent, etc., and likewise to punish every person who aids and abets. The assertion that one who is not an officer or who bears no official relation to the bank cannot, in the nature of things, aid or abet an official of the bank in the misapplication of its funds, is an argument which, if sound, should be addressed to the legislative and not the judicial department. We cannot destroy the law on the theory that the acts which it forbids cannot be committed. In other words, the construction which we are asked to give does not deal with the meaning of the statute, but simply involves the claim that it is impossible to prove the commission of the offence defined by the law. The question whether the proof shows the commission of an offence is one of fact and not of law. The citation made from United States v. Northway, 120 U.S. 327, 333, is not apposite. True, we there said: "The acts charged against Fuller could only be committed by him by virtue of his official relation to the bank; the acts charged against the
defendant likewise could only be committed by him in his official capacity." But in that case the indictment itself charged Northway, as president and agent, with aiding and abetting Fuller, the cashier of the bank, and the language quoted referred to the matter under consideration, and hence it was incidentally stated that the proof and averment must correspond.
Nor is the contention sound that the particular act by which the aiding and abetting was consummated must be specifically set out. The general rule upon this subject is stated in United States v. Simmons, 96 U.S. 360, 363, as follows: "Nor was it necessary, as argued by counsel for the accused, to set forth the special means employed to effect the alleged unlawful procurement. It is laid down as a general rule that 'in an indictment for soliciting or inciting to the commission of a crime, or for aiding or assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance.' 2 Wharton, § 1281; United States v. Gooding, 12 Wheat. 460." The form-books give the indictment substantially as it appears here. Bishop's Forms, § 114, p. 52. Nothing in Evans v. United States, 153 U.S. 584, conflicts with these views. In that case the question was whether the 8th count stated misapplication of the funds, and not whether the particular acts by which the aiding and abetting were done were necessary to be set out in the indictment. On the contrary, the counts there held good charged the aiding and abetting in the very language found in the indictment in hand, "and the said Evans did then and there knowingly and unlawfully aid and abet the said cashier in such wilful misapplication with intent in him, the said Evans, to injure and defraud," etc.
2d. It is said that all the counts in the indictment are bad, because it is not charged that the aiders and abettors knew that Haughey was president of the bank at the time it is averred the acts were committed. The argument is this, the statute says that every person who with like intent aids or abets any officer, etc., therefore the fact that the aider or abettor knew that the person who misapplied the funds was
an officer, etc., must be specifically charged. Without considering the legal correctness of this proposition, it may be observed that it has no application to this cause. Each and every count here specifically avers that "the said Theodore P. Haughey, then and there being president of the bank," and "then and there by virtue of his said office as such president as aforesaid," "misapplied the funds" and having thus fully averred the relation of Haughey to the bank, and the commission of the acts complained of in his official capacity with intent to defraud, etc., the counts go on to charge that the plaintiffs in error did unlawfully, wilfully, feloniously, knowingly, and with intent to defraud, aid, and abet the "said Haughey as aforesaid." The words "as aforesaid" clearly relate to Haughey in the capacity in which it is stated that he committed the offence charged against him in the body of the indictment. Without entering into any nice question of grammar, or undertaking to discuss whether the word "said" before Haughey's name and the words "as aforesaid" which follow it are adverbial, we think the plain and unmistakable statement of the indictment as a whole is, that the acts charged against Haughey were done by him as president of the bank, and that the aiding and abetting was also knowingly done by assisting him in the official capacity in which alone it is charged that he misapplied the funds.
3d. It is further contended that all the counts of the indictment except the first are insufficient, because they fail to aver the actual conversion of the sum misapplied to the use of any particular person. This proposition is based on the case of United States v. Britton, 107 U.S. 655, 666, and United States v. Northway, 120 U.S. 327. In the Britton case we said, that "the wilful misapplication made an offence by this statute means a misapplication for the use, benefit, or gain of the party charged, or of some company or person other than the association. Therefore to constitute the offence of wilful misapplication there must be a conversion to his own use or to the use of some one else of the moneys and funds of the association by the party charged. This essential element of the offence is not averred in the counts
under consideration, but is negatived by the averment that the shares purchased by the defendant were held by him in trust for the use of the association, and there is no averment of a conversion by the defendant to his own use or the use of any other person of the funds used in the purchase of the shares. The counts, therefore, charge mal-administration of the affairs of the bank, rather than criminal misapplication of its funds." So in Northway's case we said, p. 332; "It is of the essence of the criminality of the misapplication that there should be a conversion of the funds to the use of the defendant or of some person other than the association." The various counts of the indictment here are all substantially alike in stating the conversion. We take the second as an example. That charges that Haughey, being president of the Indianapolis Bank, did then and there by virtue of his office as president of said bank unlawfully, feloniously, and wilfully misapply the moneys, funds, and credits of the bank, with intent to convert the same to the use of the Indianapolis Cabinet Company, by then and there causing said sum to be paid out of the moneys, funds, and credits of the bank, upon a check drawn upon the bank by the Indianapolis Cabinet Company, which check was then and there cashed and paid out of the funds and credit of the bank; which sum, and no part thereof, was the said Indianapolis Cabinet Company entitled to withdraw from the bank, because said company had no funds in the bank, and that the said company was then and there insolvent, which Haughey then and there well knew, whereby said sum became lost to the bank. This clearly states the misapplication and actual conversion of the money by the methods described, that is to say, by paying it out of the funds of the bank to a designated person when that person was not entitled to take the funds, and that owing to the insolvency of such person the money was lost to the bank. The fact that the count charges the intent to convert money to the use of the Indianapolis Cabinet Company does not obliterate the clear statement of the actual conversion. In this regard the count is clearer and
stronger than that held sufficient in Evans v. United States, supra.
4th. The following request was made and refused:
"Each of the forty-six counts of this indictment, except the 1st, the 40th, the 41st, and the 43d, alleges that certain facts therein referred to are unknown to the grand jury. Thus, the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th,11th, and 12th counts each aver a misapplication of the funds of said bank by said Haughey with intent to convert the same to the use of the Indianapolis Cabinet Company and to other persons to the grand jury unknown. The averment that the names of these persons were unknown to the grand jurors is a material averment, and is necessary to be proven by the government in order to make out its case in each of said counts, because in each of said counts the charge is of a misapplication of a single, definite, fixed sum with an intent to convert the same to the use, not merely of the cabinet company, but of other persons. If, as a matter of fact, no evidence has been placed before you showing or tending to show that the names of such persons were unknown to the grand jury, them, as to these counts, the government's case has failed."
In connection with this ruling the bill of exceptions states that there was no evidence whatever on the subject offered by either side, and nothing to indicate that there was knowledge in the grand jurors of the matter which the indictment declared to be to them unknown. The instruction was rightly refused. It presupposes that where there is an averment that a person or matter is unknown to a grand jury and no evidence upon the subject of such knowledge is offered by either side, acquittal must follow, while the true rule is that where nothing appears to the contrary, the verity of the averment of want of knowledge in the grand jury is presumed. Thus it was said in Commonwealth v. Thornton, 14 Gray, 41, 42: "The fact that the name of the person was in fact known, must appear from the evidence in the case. It is ...