Morse v. United States

• Decision Date: 11 October 1909
• Docket Number: 292.
• Citation: 174 F. 539
• Parties: MORSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

174 F. 539

MORSE v. UNITED STATES.

No. 292.

United States Court of Appeals, Second Circuit.

October 11, 1909

On writ of error to review a judgment, entered upon the verdict of a jury, convicting the defendants Morse and Alfred H. Curtis as vice president and president, respectively, of the National Bank of North America, of making false entries in the books and reports of the bank and of misapplication of its funds. Three indictments were filed against the defendants containing 84 counts. These indictments were consolidated by order of the court. Twenty-one counts were withdrawn by the district attorney or were dismissed by the court, leaving 63 counts to be considered by the jury. The consolidated indictment as printed in the record covers 231 pages. The jury convicted the defendants upon 53 counts charging misapplication of the funds of the bank and the making of false entries in its books and reports to the Comptroller. Upon all of the conspiracy counts the defendants were acquitted.

Sentence was suspended as to the defendant Curtis. The defendant Morse was sentenced to imprisonment in the federal prison at Atlanta, Ga., for 15 years.

Martin W. Littleton and Owen N. Brown, for plaintiff in error.

Henry A. Wise, U.S. Atty. (Henry L. Stimson and Felix Frankfurter of counsel).

Before LACOMBE, COXE, and NOYES, Circuit Judges.

PER CURIAM.

It is urged that grave injustice was done the defendant Morse in requiring him to answer an indictment charging him with having committed 84 separate and distinct offenses.

The trial occupied 3 weeks, the court sitting from 10 o'clock until 5 each day, Saturdays included; so that, if the ordinary court hours had been observed the trial would have occupied 4 1/2 weeks.

The questions considered required the examination of a large number of complicated banking and commercial transactions necessitating the study of a vast array of figures and the understanding of the bookkeeping and procedure incident to the business of national banks.

It is argued that a jury, with nothing but the memory of its members upon which to depend, cannot keep such a tremendous record of complicated facts in mind, and that its conclusion must inevitably be based upon vague general impression and conjecture. These considerations would be persuasive were they germane to the issue now before us. They should, however, be addressed to the legislative and not to the judicial branch of the government.

The statutes of the United States permit a multiplicity of counts, and the consolidation of indictments relating to the same general subject is within the discretion of the trial court.

It is asserted that it is for the interest of the accused that this should be done, that there is less hardship to him in meeting the charges at one trial than at a series of trials extending, perhaps, over a term of years.

It is possible that if the attention of the lawmakers were called to this subject they might, at least, limit the number of charges which an accused person is required to meet under section 5209, Rev. St. (U.S. Comp. St. 1901, p. 3497), as they have done under other sections of the Revised Statutes. If the jury experienced the same difficulty as this court in adapting the voluminous proof to the various charges, they must have found the task a most arduous and perplexing one. The fact that counsel have deemed it necessary to submit briefs aggregating 576 printed pages is a forcible reminder of the difficulties which must have beset the jury in its endeavor to comprehend such an array of complicated accusations.

That a jury is not a proper tribunal to pass intelligently upon such issues is recognized in civil causes.

To meet a multiplicity of charges depending upon technical knowledge requires the employment of experts and the outlay of large sums of money which, in the case of a poor man, might almost amount to a denial of justice. These considerations, if presented to Congress, may induce some action along the lines suggested; but as the law now stands there seems to be no limit to the number of counts which a person accused of violating the national bank act may be required to meet.

It is also asserted that the sentence of the defendant Morse to 15 years' imprisonment was excessive and unusual.

In view of the fact that sentence was suspended in the case of the defendant Curtis, who was president of the bank, there is much that may be said in support of this contention. These considerations, however, should be addressed to the President upon application for executive clemency. This court is not permitted to consider them.

The defendant insists that the trial court committed a fundamental error in submitting to the jury on the misapplication counts the intent to deceive which was not alleged in the indictment. Count 30 of the indictment-- and all the misapplication counts are alike in this respect-- alleges that the defendants 'unlawfully, knowingly, and fraudulently, and with intent to injure and defraud the said National Banking Association, did willfully misapply certain of the moneys, funds, and credits of the said National Banking Association then and there being to the amount and value of $102,920. ' The allegation is plainly one charging the defendants with misapplication with intent to injure and defraud the bank, and the proof tended to establish the truth of the allegation, and not an intent 'to deceive any officer of the association, or any agent appointed to examine the affairs of any such association.'

After quoting and carefully explaining to the jury the applicable portions of section 5209 of the Revised Statutes, the court said:

'It is further necessary, to complete the crime of willful misapplication, not only that there should have been a conversion of money, funds, or credits to the use of some one other than the bank, but that such conversion should have been made with the intent on the part of the defendants to injure or defraud the bank or any other person, or to deceive any officer of the bank, or any agent appointed pursuant to law to examine the affairs of the bank.'

Although this is a correct exposition of the law, it is urged by the defendant's counsel that in its application to the case in hand it was incorrect and misleading and may have induced the jury to believe that they were justified in convicting the defendant of misapplication of the funds of the bank if they found that his intent was to deceive an official of the bank or a bank examiner, even though they found him guiltless of the intent to defraud the bank as alleged in the indictment.

The answer is:

First. The language criticised occurred in that part of the charge where the court was explaining the law generally to the jury, and any possible misapprehension on their part must have been removed by the clear and compendious explanation subsequently given by the court of the precise issue presented to them on the misapplication counts.

Second. Assuming error, it only affected the misapplication counts and will not warrant a reversal if the defendant was properly convicted on the counts charging false entries. Indeed, if the conviction can be upheld upon two of these counts, it is sufficient to sustain the judgment.

Third. No exception was taken to the charge in this regard, and no error is assigned predicated on this portion of the charge.

If we were satisfied that any substantial injustice had been done the defendant, if, for instance, we were convinced that he has been convicted of an offense not charged in the indictment, we would not hesitate to ignore the failure to note an exception. In criminal causes the court should be zealous to protect the rights of the defendant and should never permit a conviction to stand where there is a material variance between the allegation and the proof. It is most unlikely, however, that the jury were misled by the paragraph of the charge quoted above. As already pointed out, the court was explaining, generally, the meaning of the statute, and the language quoted was an absolutely correct statement of its provisions. Later, when dealing with the specific charges of misapplication, the court charged that the intent must be to injure or defraud the bank. For instance, in describing the crime of misapplication by means of an overdraft, he said:

'If the money was taken and permitted to be taken without authority or in excess of the authority lodged in Curtis and Morse, if it was taken with the prescribed intent to defraud or injure, then it was unlawfully taken.'

There are other portions of the charge which tend strongly to support the contention that the jury could not have entertained the idea that intent to deceive an officer of the bank or an examiner was an ingredient of the offense of willful misapplication as charged in the indictment.

Pursuant to requests by the defendant's counsel, the court charged the specific proposition as to the nine counts numbered from 21 to 29, both inclusive:

'That the jury must acquit unless satisfied beyond a reasonable doubt that the acts of the defendant were done with intent to injure or defraud the said association for his own use, benefit, and advantage, or for the use, benefit, and advantage of some person or company other than the said bank.'

These counts charged the misapplication of the funds of the bank by means of an overdraft. As to these counts, therefore, it would seem most unlikely that the jury could have been misled.

Per contra, we cannot wholly divest ourselves of the apprehension that the jury may have obtained a mistaken notion of the essentials of the offense and may possibly have convicted the defendant upon the theory that the funds of the bank were misapplied with intent to...