Dickinson v. United States

• Decision Date: 12 February 1908
• Docket Number: 681.
• Citation: 159 F. 801
• Parties: DICKINSON v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

159 F. 801

DICKINSON v. UNITED STATES.

No. 681.

United States Court of Appeals, First Circuit.

February 12, 1908

Henry W. Dunn (Powers & Hall, on the brief), for plaintiff in error.

Asa P French, U.S. Atty. (Roscoe Walsworth, Special Asst. U.S Atty., on the brief), and William H. Lewis, Asst. U.S. Atty.

Before PUTNAM, Circuit Judge, and ALDRICH and BROWN, District Judges.

PUTNAM Circuit Judge.

This was a joint indictment of Dickinson and one Foster, the latter of whom was cashier of the South Danvers National Bank, under section 5209 of the Revised Statutes. Foster and Dickinson were convicted on several counts, but not on the fourth and tenth. As Dickinson was entitled to do, he sued out this separate writ of error. The pith of the offense alleged against Dickinson was based on the fact that Foster the cashier, was the principal offender, and that he, as such cashier, unlawfully 'converted' certain 'money funds, credit and credits' to the use of Dickinson. The assets so converted were not otherwise described, except that, in each count, the value was given in one round sum. Neither was there any further description of the method of conversion. Dickinson was indicted as aiding and abetting. Consequently, Dickinson could not be convicted under any count except as Foster was found guilty as principal.

The pith of the first error alleged is put in the following language:

'That each count of the indictment was vague and indefinite, and did not state with that reasonable certainty required by law the way in which the alleged misapplication was made.'

We do not perceive that the general assertion that the various counts are vague is to be regarded by us except in that it is maintained that there is no description of the way in which the alleged misapplication was made. The plaintiff in error is misled by his own expression 'alleged misapplication.' If the word 'misapplication' was all there was in the counts, they, of course, would be invalid in accordance with United States v. Britton, 107 U.S. 655, 669, 2 Sup.Ct. 512, 27 L.Ed. 520. There it was held that, in an indictment of this character, the words 'willfully misapplied,' without something to show the method of the misapplication, was insufficient. It did not need a decision of the Supreme Court to establish that proposition, because it represents a familiar rule in the criminal law. But, as we have said, it is alleged here that the assets were unlawfully converted to the use of Dickinson, so that the method of misapplication was shown. The word 'convert' has such force at common law that, when used in an indictment, with a statement as to whose use the conversion was made, it needs no amplification, any more than the word 'embezzle,' or the words 'steal, take and carry away.' This we pointed out in Jewett v. United States, 100 F. 832, 837, 41 C.C.A. 88, 53 L.R.A. 568, decided by us on March 29, 1900.

The plaintiff in error relies on Batchelor v. United States, 156 U.S. 426, 427, 15 Sup.Ct. 446, 39 L.Ed. 478. That decision is not of much use as a precedent. The difficulty there was that there were long allegations of details, all connected by the words 'in the manner following,' and 'in the manner aforesaid,' and that the allegations taken as a whole the court could not understand. The only question was one of contradictory pleadings, arising from too much detail, rather than a lack of it as claimed by the plaintiff in error before us. It is quite likely that the pleadings in this case might have been criticised in some particulars not now urged, and that there might have been a variance shown at the trial. It is true that the word 'converted' is also awkward in the place where we find it here; but no objection was attempted on that ground, and its use as used here has been accepted by the Supreme Court in a like connection and for the same purpose. Coffin v. United States, 156 U.S. 432, 435, 15 Sup.Ct. 394, 39 L.Ed. 481; 162 U.S. 666, 16 Sup.Ct. 943, 40 L.Ed. 1109. The word 'convert,' under the circumstances, must be accepted as intending exactly the same thing as when spoken in connection with the use of the person who was guilty of the conversion. So, also, the plaintiff in error has not relied on any variance, or any inadequacy of description of the assets which were misapplied, except with reference to the fourth and tenth counts, as to which he was acquitted. On the whole, the indictment, in the particular which we are now considering, is fully covered by our decision in Jewett v. United States, ubi supra.

As we have said, the plaintiff in error was charged with accepting the benefit of the misapplication of the assets of the bank by the cashier. This misapplication was by permitting overdrafts, and also by permitting the discount of various notes and the consequent drafts against the proceeds thereof, many of which notes ultimately involved the bank in serious loss. As the guilty intentions of Dickinson and Foster were involved, it would naturally be assumed that the United States would have sought to prove that they knew that some of these notes were worthless, or lacking sufficient assets behind them; but we are asked to consider objections to prove that Dickinson knew, or had reason to know, that such was the fact. The record shows that the court instructed the jury that the evidence of knowledge on the part of Dickinson would not affect Foster. The portion of the record thus referred to fails to observe whether the court charged that Dickinson's knowledge would not avail the United States unless the knowledge of Foster was also proven, as it should have done at some part of its charge. However, the following were the objections taken at the trial:

'The evidence in question had no sufficient legal bearing on the transactions complained of in the indictment or the issues properly involved in the trial thereof; the evidence was immaterial or remote; it was not sufficiently connected with the defendants; that it was not sufficiently connected with the transactions complained of in the indictment; it tended to complicate the issue, and to prejudice the jury.'

These objections related to the testimony of numerous witnesses, in a sweeping form. We could have judged them more satisfactorily if exactly what occurred at the trial with reference to the particular evidence of any particular witness had been given us in a detailed, concrete form. The objection that the evidence had no sufficient legal bearing and was immaterial or remote, as a general proposition, certainly was not sound, because it was material to prove Dickinson's knowledge. That it tended to complicate the issue and prejudice the jury was, of course, ineffectual without explanation. All proofs may do those things. That it was not connected is not a proposition that we can consider on this record, where no statement was made to that effect. The proof was material and admissible under an assurance that it would be connected. If it was not connected, the plaintiff in error had his remedy, but not in the way in which it is now sought to be presented. For example, the topic might not be legitimate if it had appeared that the court had, on the subsequent application of the plaintiff in error, refused to instruct the jury as to the proper method of connecting the proof, or as to its ineffectiveness if not connected with Foster. As the record stands, the admission of the evidence may, or may not, have been error, and it is impossible for us to determine which was the fact.

We are also asked to pass on certain correspondence between the Comptroller of the Currency and some of the witnesses which occurred subsequently to the misapplication charged in the indictment. Some of the directors who were parties to the letter to the Comptroller thus offered in evidence testified for the United States. It is not necessary to detail this correspondence. If it was offered to contradict, it was admitted at our bar that the ground therefor had not been laid for its admission; if it was offered to show merely the state of mind of the directors after the offense had been committed, it was clearly of no consequence; and, if it was offered to show ratification and approval, the directors could neither ratify nor approve as against the United States what was an already completed criminal act. The truth is that, so far as appears, the correspondence was merely ex post facto, and, under the circumstances, immaterial; and it was properly ruled out.

The only remaining point is that, by the consent of both the United States and the plaintiff in error, the verdict was taken from 10 jurors, 2 having been excused. The facts were as follows:

The full jury of 12 was impaneled, and the trial commenced. While it was proceeding it appeared that one of the jurors, by reason of illness, was unable to sit further, whereupon the following agreement was filed of record:

'Whereas one of the jurors impaneled to try the above-entitled indictment is unable by reason of illness to further sit therein.

'Now, therefore, we consent and agree that the said juror, to wit, Charles F. Low, may be discharged from the further trial of this indictment, and that the trial now pending may proceed before the remaining eleven jurors with the same force and effect as if said juror had not been discharged.

'John W. Dickinson. 'George M. Foster. 'United States, 'By Boyd B. Jones, 'Special Assistant U.S. Attorney.'

The court proceeded with the trial with the remaining 11 jurors. Subsequently, the trial being still unfinished, death occurred in the family of one of them, and another like agreement was filed of record as to him. The trial proceeded with the remaining 10 jurors, who returned a verdict subsequently to which a motion in...