Gardes v. United States

• Citation: 87 F. 172
• Decision Date: 19 April 1898
• Docket Number: 646.
• Parties: GARDES v. UNITED STATES. [1] GIRAULT v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

87 F. 172

GARDES v. UNITED STATES. ^[1]

GIRAULT v. SAME.

No. 646.

United States Court of Appeals, Fifth Circuit.

April 19, 1898

J. R Beckwith, for plaintiff in error Gardes.

Girault Farrar and A. D. Henriques, for plaintiff in error Girault.

J. Ward Gurley, for the United States.

Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District judge.

McCORMICK Circuit Judge.

Henry Gardes was president, and Walter W. Girault was cashier, of the American National Bank of New Orleans, La. They and Thomas H. Underwood composed the firm of T. H. Underwood &amp Co., which firm was a customer of the bank. Gardes, Girault and Underwood were indicted together, under section 5209 of the Revised Statutes. The first two were charged with embezzling, abstracting, and willfully misapplying the moneys, funds, and credits of the bank; and Thomas H. Underwood was charged with aiding and abetting them; and Walter W. Girault was charged with making false entries in the books of the bank; and Henry Gardes and Thomas H. Underwood, with aiding and abetting him in making the false entries. The indictment contained 136 counts. It charged 40 different offenses,-- 32 distinct acts of embezzlement, abstraction, and willful misapplication, and 8 separate false entries. Each of the 32 distinct acts of embezzlement, abstraction, and willful misapplication is charged three times; that is, embezzlement, and aiding and abetting in the embezzlement, of a particular amount, upon a particular date, are charged in one count; the abstraction, and aiding and abetting in the abstraction, of the same amount, are charged in another count; and the willful misapplication of, and aiding and abetting therein, are charged in another count; so that the 32 distinct and separate acts, each being made the basis of 3 counts, are the subject of 96 counts in the indictment. Each of the 8 separate false entries is charged 5 times; that is, five counts for each entry,-- a count for each of the intents and purposes stated in section 5209. Before the case was submitted to the jury the district attorney dismissed counts 79, 80, 81, 88, 89, 90, 91, 92, 93; and, after the verdict, judgment was arrested on counts 4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, 37, 40, 43, 46, 49, 52, 55, 58, 61, 64, 67, 70, 73, 76, 79, 82, 85, 88, 91, 94. Gardes and Girault filed demurrers to the indictment on the ground that there are several distinct offenses charged against each defendant in the several counts, not for the same act and transaction, but for different acts and transactions, and crimes not of the same class of crimes or offenses. Gardes, in his demurrer, presented a further ground,-- that he was charged in separate counts in different capacities; that is, in some he is charged as principal, and in other counts as aider and abettor. These demurrers were overruled, and the case went to trial March 29, 1897. The trial continued until April 14, 1897, when one of the jurors, I. W. Homan, became too ill to sit on the trial, and the case was continued until the next day. On the next day two physicians certified that the juror was permanently incapacitated, and thereupon a mistrial was entered. The case was assigned for trial on the 17th day of May, 1897. On that day each of the defendants filed a plea of former jeopardy. Demurrers were filed to these pleas, and the demurrers were sustained, and the pleas dismissed, and a trial was again commenced May 18, 1897. It continued until June 12, 1897. Thomas H. Underwood was acquitted. Henry Gardes and Walter W. Girault were found guilty as charged. They bring this writ of error.

The errors assigned are numerous, but, in substance, they suggest that the circuit court erred (1) in refusing the motion made by the defendants to require the government to elect the counts in the indictment on which the district attorney will ask for conviction; (2) in sustaining the demurrers to the defendants' pleas of former jeopardy; (3) in dispensing with the reading in full of the indictment, and permitting, instead thereof, the reading only of certain counts, and a statement by the district attorney as to each of the other counts; (4) in admitting certain testimony offered by the government to prove the intent and purpose of the parties, and in explanation of certain entries made in the books of the bank by one of the witnesses; (5) in receiving from the jury a general verdict to the effect that they found Gardes and Girault 'guilty as charged'; (6) in refusing to give certain charges requested by the defendant Girault.

The section of the statute under which these indictments are presented, so far as it bears upon them, and it is necessary to here quote, is in these words:

'Sec. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the monies, funds, or credits of the association; * * * or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of such association; and every person who with like intent aids or abets any officer, clerk, or agent, in any violation of this section shall be deemed guilty of a misdemeanor.'

Section 1024 of the Revised Statutes provides:

'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts. And if two or more indictments are found in such cases the court may order them to be consolidated.'

It cannot reasonably be questioned that the transactions made the basis of the indictments in this case are connected together, and are of the same class of crimes and offenses. And, if the congress of the United States had the power to provide by statute as section 1024 was evidently intended to provide, it would seem that the language of the statute is a sufficient answer to any criticism of these indictments on the ground of misjoinder of the counts, or the excessive number thereof. Of the 32 offenses charged to have been committed, each is made the subject of three counts, manifestly because the language of the section applicable to the transaction denounced uses the three terms 'embezzle, abstract or willfully misapplies.' If it is suggested that 32 different transactions, each alike obnoxious under this penal statute, should not be accumulated upon the head of the offender at one time, it can be answered that the lawmaking power has taken a different view on that subject. It can, however, also be answered, both on reason and on authority, that it would manifestly be far more oppressive to the offender to torture him with 32 consecutive trials on 32 separate indictments than to combine them as the statute permits, and subject him to only one trial. U.S. v. Simmons, 96 U.S. 360; U.S. v. Britton, 107 U.S. 655, 2 Sup.Ct. 512; U.S. v. Northway, 120 U.S. 330, 7 Sup.Ct. 580; Claassen v. U.S., 142 U.S. 140, 12 Sup.Ct. 169; Coffin v. U.S., 156 U.S. 432, 15 Sup.Ct. 394; Id., 162 U.S. 664, 16 Sup.Ct. 943; U.S. v. Harper, 33 F. 471. In the case of Coffin v. U.S., supra, the indictment contained 50 counts. Mr. Justice White, in opening his admirable summary and analysis of these counts, remarks that:

'The indictment is prolix and redundant, and it is difficult to analyze it so as to make a concise statement of its contents. It contains fifty counts, and alleges that the various offenses enumerated in them were committed on the different dates between January 1, 1891, and July 26, 1893. The counts embrace a number of acts made misdemeanors by the statute, and the charges are commingled in a very indefinite and confusing manner. All the counts, however, may be classed as follows.'

He then proceeds with his classification and comments; but neither in his statement thereof, nor in the opinion of the court delivered by him, is it announced that the manner of counting in that indictment is not authorized by the statute, or that the government should have elected certain counts on which it would ask conviction, and enter a discontinuance as to the other counts. The case was reversed on the ground that the trial court erred in refusing certain requested charges, and in giving certain portions of its general charge to which the defendant reserved exceptions. The verdict in that case was a general verdict of 'guilty as charged on all counts of the indictment. ' At the time the indictment was submitted to the jury to which their verdict related, it contained (as it did at the time the verdict was returned) 50 counts, as above stated. Afterwards, and before the writ of error was taken to the supreme court, the judgment was arrested on 20 of these counts. And on the second trial of the case only 17 out of the 50 counts originally contained in the indictment were submitted to the jury, and a verdict was returned finding one of the defendants guilty of 7 of the counts of the indictment; and against him judgment and sentence were pronounced, and he took his writ of error from that judgment to the supreme court. In disposing of this writ of error, Mr. Justice White . And while, in his statement of the case, he alludes to the fact that only 17 counts were submitted to the jury on the second trial, there is no word nor intimation that the manner and form of the counting, or the number or counts, in the original indictment, were not...