Porter v. United States
| Decision Date | 13 December 1898 |
| Docket Number | 725. |
| Citation | 91 F. 494 |
| Parties | PORTER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
The indictments are drawn under section 5209 of the United States Revised Statutes, and charge the plaintiff in error with having embezzled certain moneys of the First National Bank of Austin, Tex., while being the teller and agent of that bank. The indictment numbered 1,148 was filed February 10, 1896. It charges that Porter embezzled, on November 12, 1895 'certain moneys and funds of the banking association, to wit, the sum of two hundred and ninety-nine dollars and sixty cents ($299.60), in lawful legal tender money of the United States of America, of the value of $299.60, a more particular description of the kind and character of said moneys and funds being to the grand jury unknown. ' The indictment numbered 1,174 was filed February 15, 1898. It charges that Porter embezzled, on October 10, 1894, certain moneys of the banking association, amounting to the sum and value of $554.48, 'a more particular description of said moneys being to the grand jurors unknown." This indictment further charges 'that between the days of the sixth (6th) of July, A.D. 1896, and the fifth (5th) of February, A.D 1897, the aforesaid W. S. Porter was a fugitive, and fleeing from justice, to avoid a prosecution in this court for the offense hereinbefore set out. ' The indictment numbered 1,175 was filed February 15, 1898. It charges that Porter embezzled, on November 12, 1894, certain of the funds of the banking association, amounting to the sum and value of $299.60, imprisonment in the Ohio State Penitentiary.
Substantially, the errors assigned are as follows: (1) That the court refused to direct an acquittal as to indictments Nos. 1,174 and 1,175, on the ground that the offenses charged therein are shown on the face of the indictments to have been committed more than three years before the finding of the indictments, and that the same are therefore barred by limitation, because the testimony of the government failed to show that the defendant had, since the alleged commission of the offenses, been a fugitive from justice, as defined by the constitution and laws of the United States. (2) That the court refused to direct an acquittal as to indictment No, 1,148 on the ground that the government elected to charge in that indictment that Porter had embezzled $299.60, lawful legal tender money of the United States, and the government had failed to offer any proof of the embezzlement of any lawful tender money. (3) That the court refused to give a special charge to the effect that the government had failed to prove the embezzlement of $299.60, lawful legal tender money of the United States, the case of the government had failed, and the jury should acquit Porter as to indictment No. 1,148. (4) That the court refused to charge, as to indictments Nos. 1,174 and 1,175, that as the government had failed to show that Porter had at any time been a fugitive from justice since the alleged commission of the offenses charged in said indictments, as defined by the constitution and laws of the United States, said indictments are barred by the three-years statutes of limitations, and the jury should find Porter not guilty. (5) That the court refused to give a special charge, in causes Nos. 1,174 and 1,175, defining the meaning of 'fugitive from justice,' as those words are used in the United States statutes of limitation with reference to criminal offenses. (6) That the court overruled the motion for a new trial. (7) That the court entered a judgment of conviction upon the three indictments as consolidated.
R. H. Ward and A. S. James, for plaintiff in error.
J. Ward Gurley, for the United States.
Before PARDEE, Circuit Judge, and SWAYNE and PARLANGE, District Judges.
PARLANGE District Judge (after stating the facts).
The plaintiff in error complains that the trial judge refused to give four special charges which he requested. He further complains that the court overruled his motion for a new trial, and entered a judgment of conviction against him upon three indictments as consolidated. There are two bills of exception in the cause. They contain no matter...
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