Boone v. United States

• Decision Date: 08 March 1919
• Docket Number: 4912.
• Citation: 257 F. 963
• Parties: BOONE v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

257 F. 963

BOONE v. UNITED STATES. ^[1]

No. 4912.

United States Court of Appeals, Eighth Circuit.

March 8, 1919

Rehearing Denied April 28, 1919.

Joseph M. Hill, of Ft. Smith, Ark. (Henry L. Fitzhugh and John Brizzolara, both of Ft. Smith, Ark., and Jeptha H. Evans, of Boonville, Ark., on the brief), for plaintiff in error.

J. V Bourland, of Ft. Smith, Ark. (Emon O. Mahony, U.S. Atty., of El Dorado, Ark., on the brief), for the United States.

Before SANBORN and HOOK, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge.

The plaintiff in error, hereinafter referred to as the defendant was indicted with three other officers of the American National Bank, of which he had been president, for violations of section 5209, Rev. St. (Comp. St. Sec. 9772). There were nine counts in the indictment. On the first eight the jury returned a verdict of not guilty, and a verdict of guilty on the ninth count. It is therefore only necessary to pass on this one count. That count charges:

'And the grand jurors aforesaid, inquiring as aforesaid, upon their said oaths, do further present that the said P. A. Ball, heretofore, to wit, on the 29th day of June, 1915, in the division and district aforesaid, the said P. A. Ball being then and there the said cashier of the American National Bank of Ft. Smith. Ark., and which said bank was established and then existing and doing business as a bank, under and by virtue of the national banking and of the United States, unlawfully, willfully, and feloniously did make, in a certain report of the condition of the affairs of the said bank at the close of business on, to wit, the 23d day of June, 1915 (which said report then and there purported to be made to the Comptroller of the Currency of the States, in accordance with section 5211 of the Revised Statutes of the United States ^[2]), a certain other false entry under a certain head designated in said report as 'Resources' and opposite items '16' and '17' therein, to wit, ' Lawful Money Reserve in Bank,' and in column therein headed 'Dollars Cts.,' which said false entry was and is in figures following, to-wit:

"34 179 35

15 000 00'

-- and which said entry so made then and there purported to show, and did in substance, intent, and effect state and declare, that the lawful money aforesaid further say that the entry was and is false in this, to wit, that the lawful money reserve in said bank was not $49,179.35, but was a much less sum, to wit, the sum of $29,179.35; and the grand jurors aforesaid do further say that the said P. A. ball, cashier as aforesaid, then and there, at the time and place of making said false entry in said report as aforesaid, well knowing the said entry to be then and there false as aforesaid, thereby intended to injure and defraud the said bank, and to deceive the said Comptroller of the Currency and any agent appointed by said Comptroller to examine, and in any examination by said Comptroller, and agent so appointed, of the affairs of said bank--contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States.

'And the grand jurors, upon their oaths, do further present that the said T. W. M. Boone, being then and there president, and the said A. S. Dowd and the said F. M. Dickenson, being assistant cashiers of said bank, heretofore, to wit, at divers and sundry times before and on the said 29th day of June, 1915, in the said city of Ft. Smith, Ark., within the jurisdiction of said court, unlawfully, willfully, and feloniously, and with intent to injure and defraud said bank, and to deceive the said Comptroller, and any agent by him thereunto appointed, in examining the affairs of said bank, did aid, abet, incite, counsel, and procure the said P. A. ball, cashier as aforesaid, to make said false entry in manner and form as aforesaid, to do and commit-- contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States.'

There was a demurrer to each count of the indictment. That relating to the ninth count assigns two grounds-- the first, that it is duplicitous, in charging two separate and distinct offenses, to wit, the offense of making a false entry in a report with the intent to injure and defraud the bank and of making the false entry in the report with the intent to deceive the Comptroller of the Currency and any agent appointed by him to examine the affairs of the bank; second, that the allegations in the indictment charged the defendant with being an accessory, and the allegations show that, if he were guilty of any offense, it would be that of principal and not that of an accessory. The demurrer having been overruled, the defendant at the beginning of the trial objected to the introduction of any evidence upon the ground that the indictment did not charge a public offense, which objection was by the court overruled. After rendition of the verdict, motions in arrest of judgment and for a new trial were filed and overruled. Proper exceptions to these rulings of the court were saved and are assigned as errors in the assignment of errors.

It has been repeatedly held by this court that the practice of objecting to the introduction of evidence upon the ground that the indictment or complaint fails to state a cause of action does not prevail in the courts of the United States, either in civil or criminal causes, except under circumstances of an extraordinary nature. Morris v. United States, 161 F. 672, 678, 88 C.C.A. 532, 538; United Kansas Portland Cement Co. v. Harvey, 216 F. 316, 132 C.C.A. 460; McSpadden v. United States, 224 F. 935, 140 C.C.A. 413; Estes v. United States, 227 F. 818, 142 C.C.A. 342; McKnight v. United States, 252 F. 687, . . . C.C.A. . . . .

Is this count of the indictment duplicitous by reason of the allegations that the false entry in the report was made with the intent to injure and defraud the bank and to deceive the Comptroller of the Currency, or any agent appointed to examine the affairs of the bank?

Counsel rely on what they presume was decided by Judge Adams, speaking for this court, in Billingsley v. United States, 178 F. 653, 101 C.C.A. 465, and United States v. Norton (D.C.) 188 F. 256, decided by Judge Campbell, who was of the opinion that the Billingsley Case sustained the contention now made.

A careful reading of Judge Adams' opinion does not warrant this construction. The issue in that case was whether the indictment charging a false entry in the books of the bank, with the intent to deceive any agent appointed to examine the affairs of the bank, without charging that the false entry was made with the intent to defraud the association, or any other bank or person, was sufficient to charge an offense. The court held the indictment sufficient, saying:

'There are apparently two separate intents contemplated by this section, either of which, when accompanying a forbidden act, constitutes an offense.'

It was not held that the making of a false entry to defraud and to deceive constituted separate offenses. The intents were separate, but they might both concur in the making of a single false entry and thereby constitute a single crime. That allegations in an indictment charging both intents in one count are not duplicitous has been decided in McKnight v. United States, 97 F. 208, 215, 38 C.C.A. 115, 123, in which the opinion was delivered by Judge (now Mr. Justice) Day, and was concurred in by Judge (later Mr. Justice) Lurton and Circuit Judge Taft. In United States v. Britton, 107 U.S. 655, 665, 2 Sup.Ct. 512, 27 L.Ed. 520, a count charging the acts of the defendant to have been with the intent to injure and defraud the said association and certain persons to the grand jurors unknown was held good and not duplicitous. The same conclusion was reached in Morse v. United States, 174 F. 539, 548, 98 C.C.A. 321, in Richardson v. United States, 181 F. 1, 8, 104 C.C.A. 69, and in effect in United States v. Corbett, 215 U.S. 233, 30 Sup.Ct. 81, 54 L.Ed. 173.

In Crain v. United States, 162 U.S. 625, 636, 16 Sup.Ct. 952, 40 L.Ed. 1097, a similar question was before the court. A count in the indictment charged three acts, made separate offenses by section 5421, Rev. St. (Comp. St. Sec. 10193), and it was held that a motion in arrest of judgment on that count, on the ground of duplicity, was properly denied. The court said:

'We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute.'

The general rule is that in a criminal pleading, when the statute makes either of two or more distinct acts connected with a more general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes when committed by different persons or at different times, they may, when committed by the same person at the same time be coupled in one count as constituting one offense. Lehman v. United States, 127 F. 41, 45, 61 C.C.A. 577; May v. United States, 199 F. 53, 117 C.C.A. 431; Clark v. United States, 211 F. 916, 918, 128 C.C.A. 294, 296; Glass v. United States, 222 F. 773, 138 C.C.A. 321.

Another ground urged is that the indictment, after charging the making of the report of the condition of the bank, inserted in parenthesis these words:

'(Which said report then and there purported to be made to the Comptroller of the Currency of the United States, etc.).'

It is claimed that this count fails to charge that the report was made to the Comptroller of the Currency, but only that it...