Dimmick v. United States

• Decision Date: 24 February 1903
• Docket Number: 887.
• Citation: 121 F. 638
• Parties: DIMMICK v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 638

DIMMICK v. UNITED STATES.

No. 887.

United States Court of Appeals, Ninth Circuit.

February 24, 1903

[Copyrighted Material Omitted]

George D. Collins, for plaintiff in error.

Denson & Schlesinger, special counsel for the government, and M. B Woodworth, U.S. Atty.

The plaintiff in error was indicted for violation of the provisions of section 5492 of the Revised Statutes (U.S Comp. St. 1901, p. 3705), which is as follows:

'Sec. 5492. Every person who, having moneys of the United States in his hands or possession, fails to make deposit of the same with the treasurer, or some assistant treasurer, or some public depositary of the United States, when required so to do by the Secretary of the Treasury, or the head of any other proper department, or by the accounting officers of the treasury, shall be deemed guilty of embezzlement thereof, and shall be imprisoned not less than six months nor more than ten years, and fined in a sum equal to the amount of money embezzled.'

He was convicted under the seventeenth, nineteenth, and twentieth counts of the indictment. Judgment on the seventeenth count was arrested. The nineteenth and twentieth counts are the same in form. The nineteenth reads as follows:

'That Walter N. Dimmick, late of the Northern District of California, heretofore, to wit, on the eleventh day of December, in the year of our Lord one thousand nine hundred, at the city and country of San Francisco, State and Northern District of California, then and there being, was then and there a clerk of the United States Mint at San Francisco, State of California, in the District aforesaid, and was known and designated as chief clerk of said Mint, and as such clerk then and there had moneys of the United States of America in his hands and possession, to wit, the sum of three hundred and sixty-six and eighty-nine one-hundredth ($366.89) dollars, lawful money of the United States of America. That the said money came into the hands and possession of the said Walter N. Dimmick, and was received by him as clerk aforesaid, at the time and place aforesaid, from the sale of personal property belonging to the United States of America, to wit, from the sale of by-products and old materials of the United States Mint at San Francisco, State and Northern District of California aforesaid, and the said Walter N. Dimmick, as clerk aforesaid, then and there having in his hands and possession said sum of money, to wit, the sum of three hundred and sixty-six and eighty-nine one hundredth ($366.89) dollars, derived as aforesaid, was then and there required and requested by the Secretary of the Treasury of the United States, and the director of the Mint of the United States, to deposit the said money with the Assistant Treasurer of the United States at San Francisco State and Northern District aforesaid, on the thirty-first day of December, in the year of our Lord one thousand nine hundred, said date being the last day of a quarter of the year one thousand nine hundred. That the said Walter N. Dimmick, as clerk aforesaid, having said money in his hands and possession, as aforesaid, knowingly, willfully and feloniously failed to make deposit of said money with the Assistant Treasurer of the United States at San Francisco, State and Northern District of California, on said thirty-first day of December, in the year of our Lord one thousand nine hundred.'

The requirement and request by the director of the mint referred to in the indictment is a general regulation of the Secretary of the Treasury, which was made and which went into effect on November 1, 1890. It reads as follows:

'All funds received from the sale of by-products and old materials, and for assays of bullion, shall be separately deposited on the last day of each quarter in the Treasury of the United States, and the nature of the deposit specified in the certificate of deposit. The original certificate, together with a statement in detail of the receipts from each source, shall be forwarded to the Bureau of the Mint.'

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

It is contended that the indictment does not charge the accused with failure to deposit the money, but merely charges him with failing to deposit it on a specified date, and it is argued that, if the money were deposited on the day before or the day following the specified date, there would be no violation of the law. To answer this it is only necessary to refer to the terms of the statute and the language of the indictment. In the nineteenth count the indictment charges that the money was received by the plaintiff in error on December 11, 1900, and that he still had it in his hands and possession on December 31, 1900, that day being the last day of the quarter; in other words, the indictment charges that the money was not deposited before the 31st, and it then proceeds to allege that the plaintiff in error willfully, knowingly, and feloniously failed to deposit the same on that day. The statute requires, in plain terms, that the person referred to therein who has money of the United States in his possession shall deposit the same when required so to do by the Secretary of the Treasury or the head of any other proper department, and that, if he fail so to do, he shall incur the prescribed penalty. The indictment follows the statute, and charges the commission of the crime which is therein defined.

It is contended that the nineteenth and twentieth counts of the indictment are insufficient for the reason that the money therein referred to is not described. The rule is that an indictment against a public officer or employe, even for embezzlement of public funds which came into his possession as such officer or employe, need not state what kind of money was embezzled, whether coin, and, if so, whether gold or silver, or bills, or of what denominations, and how many of each. The reason of the rule is too plain to require discussion. No one but the person in the possession of such moneys knows or can know what kind of money it is. United States v. Bornemann (C.C.) 36 F. 257, and cases there cited. It is contended that the decision in Moore v. United States, 160 U.S. 268, 16 Sup.Ct. 294, 40 L.Ed. 422, sustains a contrary doctrine, but we do not so understand the ruling in that case. That was a case in which a clerk of the post office was charged with embezzling moneys of the United States. It was objected to the indictment that it contained no direct allegation that the defendant was a clerk in the post office, that it did not describe the money, and that it did not charge that the money came into the possession of the defendant by virtue of his employment. The Supreme Court for those reasons held the indictment insufficient, and said that there was no reason why one who was not such an employe, and who embezzled funds of the government could not properly be charged with the kind and description of money so embezzled. But the court proceeded to say that if the indictment had charged that the defendant was a clerk in the post office, and that he had embezzled the sum stated, and that such sum came into his possession in that capacity, the indictment would have been held sufficient, notwithstanding the general description of the property embezzled as consisting of so many dollars and cents. The indictment in the case under consideration alleges that the plaintiff in error was a clerk in the United States mint, and that as such clerk he had in his possession the money for the failure to deposit which he was indicted.

It is contended that the verdict operates as an...