Agnew v. United States

• Decision Date: 11 January 1897
• Docket Number: No. 447,447
• Citation: 165 U.S. 36,41 L.Ed. 624,17 S.Ct. 235
• Parties: AGNEW v. UNITED STATES
• Court: U.S. Supreme Court

165 U.S. 36

17 S.Ct. 235

41 L.Ed. 624

AGNEW

v UNITED STATES.

No. 447.

January 11, 1897.

Plaintiff in error was indicted in the United States circuit court for the Southern district of Florida for violation of section 5209 of the Revised Statutes, which is as follows:

'Sec. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; 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 any 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, and shall be imprisoned not less than five years nor more than ten.'

The indictment contained eight counts, charging that Agnew, being president of the First National Bank of Ocala, Fla., unlawfully misapplied the moneys, funds, and credits of the bank, with intent to convert them to his own use, and to injure and defraud the bank, by causing a check for $3,400 belonging to the bank to be entered as a credit on his personal account with the bank, his account at the time being largely overdrawn, and he being largely indebted to it; that he caused a false entry of $3,400 to be made to his credit on the books of the bank by means of a false deposit slip, which he caused to be made in his own favor, with the intent on his part to injure and defraud the association; that he embezzled and converted to his own use, with the intent to injure and defraud the association, moneys and assets thereof to the amount of $2,500; that he unlawfully misapplied the moneys, funds, and credits of the association, with intent to convert them to his own use, and with intent to injure and defraud the association, in this: that he purchased for the bank certain bonds, of the par value of $5,000, of the Globe Phosphate Mining & Manufacturing Company, paying for them the sum of $2,500, and, without the knowledge and consent of the banking association, placed the bonds among its assets, and caused them to be credited to his personal account on the books of the bank at the sum of $5,000, knowing the bonds to be entirely worthless, and of no commercial value, and thus willfully misapplied the moneys, funds, and credits of the bank to the amount of $2,500, and converted the same to his own use; that he feloniously embezzled and converted to his own use $7,500 of the moneys, funds, and credits of the bank, with intent to injure and defraud it; that he unlawfully and willfully misapplied the moneys, funds, and credits of the bank, with intent to convert the same to his own use and to injure and defraud the bank, by purchasing, acting ostensibly for it, certain bonds of the Globe Phosphate Mining & Manufacturing Company, of the par value of $10,000, for $2,500, and, without the knowledge and consent of the bank, placing said bonds among the assets of the bank as a part thereof, and causing the sum of $10,000 to be credited to his own personal account on the books of the bank, he then and there well knowing that the bonds were worthless, and of no commercial value, and thus willfully misapplying and converting to his own use $7,500 of the moneys, funds, and credits of the association; that he embezzled and converted to his own use, with intent to injure and defraud the association, $7,500 of the bank's moneys and assets; that he unlawfully and willfully misapplied the moneys, funds, and credits of the bank, with intent to convert the same to his own use, and to injure and defraud the bank, by purchasing $10,000 of the Globe Phosphate Mining & Manufacturing Company's bonds for $2,500, placing them, without the knowledge and consent of the association, among the assets of the association at $10,000, and causing the sum of $10,000 to be placed to his personal credit on the books of the association, knowing said bonds to be worthless, and of no commercial value, thus willfully misapplying and converting to his own use $7,500 of the moneys, funds, and credits of the bank with the aforesaid intent.

The indictment was returned December 12, and plaintiff in error was arraigned December 17, 1895, and filed a plea in abatement as follows:

'And the said Enoch W. Agnew, in his own proper person, comes into court here, and, having heard the said indictment read, says that the grand jury which found said indictment was an illegal grand jury, in this: That after sixteen had failed to attend upon the regular venire, the court ordered that a special venire issue for ten grand jurors, to be drawn according to law. Said grand jurors so ordered by the court were directed to be taken from the county of Duval. That the clerk and marshal, in drawing said venire, whenever a name was legally drawn from the box, if said party so drawn was not from the county of Duval, laid aside said name, and continued drawing until ten names from the county of Duval were obtained, and which illegal drawing of said venire tended to the prejudice of this defendant, and the court, on excusing three returned on the second venire, ordered that four names be drawn for jurors to complete the panel. That said jurors were ordered to be drawn from the box, and the clerk and marshal drawing the same were ordered to take those that were from Duval county as they came from the box, and the said clerk and marshal, as the names were drawn, rejected and did not place on the venire said names so drawn, but rejected and laid them aside, until names came out of the box of parties resident of Duval county, which drawing was illegal and tended to the prejudice of the defendant. And, upon said venire being returned, showing A. K. Leon and Julius Kaufman summoned, and Alex. Sabel and Frank Robinson not found, the court ordered that four names be drawn from the box and in said order directed that said four names should be taken from the county of Duval. That the said United States marshal and clerk, in obedience to said order, drew from the box more than four names, and, where the names were of persons not resident of Duval county, rejected and laid them aside, and continued drawing until Dennis A. Andreu, Benjamin F. Manier, John L. Marvin, and Samuel Morris were drawn. And so John L. Marvin, John E. Olney, Z. L. Anderson, Charles E. Bell, W. G. Candlish, A. R. Paxon and Dennis A. Andreu were drawn illegally by said marshal and clerk, and not in accordance with the statute of the United States in such case made and provided, which requires that, where less than sixteen attend, the court shall order the marshal to summon from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And so the names of many persons who were duly drawn from the jury box were not placed upon the venire, but were, in the pursuance of the aforesaid orders, after being drawn from the box, rejected and laid aside by the clerk and marshal drawing the same, for the purpose of completing the grand jury from the residents of the county of Duval. And the defendant says that he was entitled to have the said grand jury completed according to law, and the said grand jury so impaneled and sworn as aforesaid was not drawn and impaneled in accordance with the statutes of the United States providing for the drawing and impaneling of grand juries, but was illegal. And this defendant says that such drawing tended to his injury and prejudice.

'Wherefore he prays judgment of the said indictment, and that the same may be quashed.'

To this plea the United States filed a demurrer, and, issue being joined thereon, the court, after argument, held the plea insufcient, to which plaintiff in error excepted, and pleaded not guilty. The cause was set for trial on January 3d, on which day a jury was impaneled, the trial proceeded with, and a verdict of guilty returned January 7th. Motions for new trial and in arrest of judgment were submitted and denied, and sentence thereupon pronounced, and the cause brought here on writ of error.

E. K. Foster, for plaintiff in error.

Sol. Gen. Conrad, for the United States.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Nineteen errors were assigned, of which the third, fifth, ninth, and fourteenth were abandoned, and the sixth and seventh, the twelfth, sixteenth, and seventeenth, and the eleventh and fifteenth were argued by counsel for plaintiff in error together. We will examine these alleged errors in their order.

1. That the court erred in sustaining the demurrer to defendant's plea in abatement.

Section 802 of the Revised Statutes is as follows: 'Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the district with such services.'

Under section 803, writs of venire facias, when directed by the court, were to issue from the clerk's office, and be served and returned by the marshal, in person or by his deputy, or, in case the marshal or his deputy were incapacitated, by some fit person specially appointed by the court.

By section 804, when, from challenges or otherwise, there was not a petit jury, it was...