Gallot v. United States

• Decision Date: 19 April 1898
• Docket Number: 647.
• Citation: Gallot v. United States, 87 F. 446 (5th Cir. 1898)
• Parties: GALLOT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

87 F. 446

GALLOT v. UNITED STATES.

No. 647.

United States Court of Appeals, Fifth Circuit.

April 19, 1898

The plaintiff in error, Louis Gallot, was indicted, tried, and convicted in aiding and abetting Louis Colomb, a bookkeeper in the Union National Bank, with the abstraction and willful misapplication of the moneys, funds, and credits of the bank. Two indictments were presented against him, which were subsequently consolidated and tried together. Each indictment contains 36 counts charging 36 separate and distinct offenses, and were drawn under section 5209 of the Revised Statutes of the United States, 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, 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. ' In one indictment he is charged with the aiding and abetting in the abstraction of 36 specified amounts of the moneys, funds, and credits of the Union National Bank upon 36 specified dates. In the other indictment he is charged with aiding and abetting in the willful misapplication of the same amounts upon the same dates as charged in the first indictment. To each of the indictments Gallot filed a plea, pleading the death of Louis Colomb prior to any indictment as a bar against the trial of himself. Demurrers were filed to the please, and were sustained, and the pleas overruled. Gallot then filed demurrers to the indictment, again objecting to be tried upon the charges because of the death of Louis Colomb. These demurrers were overruled, and the case went to trial resulting in a verdict of 'guilty as charged.' It now comes before this court on five bills of exceptions and twenty-six assignments of error.

J. R. Beckwith, for plaintiff in error.

J. Ward Gurley, for the United States.

Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge.

SWAYNE District Judge, after stating the facts as above, .

By the nineteenth and twentieth assignments of errors it is set out that the court erred in permitting evidence as shown in bills of exceptions Nos. 2 and 3, which errors, it would seem, this court was expected to ascertain by a careful reading of over 60 pages of record, and an inspection of the questions and objections and the rulings of the court, and exceptions thereto taken by the defendant below, contained therein. By the twenty-third and twenty-fourth assignments of errors we are informed that the court below erred in its charge given to the jury in each portion thereof marked by lines in said written opinion and marked 1, 2, 3, 4, 5, 6, 7, 8, and 9, and shown in the bill of exceptions No. 5, and the court erred in refusing each of the several charges and instructions in Nos. 2 and 5 as shown in the bill of exceptions. Rules 10 and 11 of this court (21 C.C.A. cxi., and 78 F. cxi.) are as follows:

(10) 'The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts; and those matters of law, and those only, shall be inserted in the bill of exceptions and allowed by the court.'

(11) 'The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed. When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. Such assignment of errors shall form part of the transcript of the record and be printed with it. When this is not done, the counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.'

The assignments of errors, Nos. 19, 20, 23, and 24 being in violation of the above rules 10 and 11 of this court, we decline to examine and pass upon the questions attempted to be raised thereby.

The first nine, and the 15th, 16th, 17th, 18th, 22d, 26th, and 27th assignments of errors raised the question so often repeated in the record of the right of the defendant, Louis Gallot, to be tried, under section 5209, as an aider and abettor of Louis Colomb, who was then dead, and had not been indicted or prosecuted during his lifetime. The ingenious and able argument of counsel for plaintiff in error was interesting, and, had it not been for the statute (section 5209) in question, would be effective. He seemed to be thoroughly familiar with and dwelt at length on the decisions at common law, and even extended his argument to the consideration of accessories to crime both before and after the fact. Without attempting to review the numerous cases cited and commented upon, we think a consideration of the statute above quoted and some of the decisions relating thereto will dispose of the question. The act (section 5209) in question was passed by congress for the purpose of sustaining and protecting national banks created by and under its authority, and by its express language the crime charged is made a misdemeanor. Whether this was done to prevent persons charge with crime from availing themselves of the pernicious technicalities that had crept into the common-law decisions and practice in regard to principal and accessory, we are not now called upon to decide; but no one can question the authority of congress to make such classification, or the binding force of it in reference to the application of different rulings that belong thereto. Hence the able argument of counsel for defendant, both oral and printed, directed to the common-law decisions of principal and agent, does not apply to this case. Congress has established the offense here charged to be a misdemeanor, and he who aids or abets in committing such an offense can be tried independently as a principal, irrespective of the presence of the one he aided. The supreme court of the United States, in U.S. v. Gooding, 12 Wheat. 475, passes upon a similar statute, and declares:

'The fifth instruction turns upon a doctrine applicable to principal and accessory in cases of felony, either at the common law or by statute. The present is the case of a misdemeanor, and the doctrine, therefore, cannot be applied to it; for in cases of misdemeanor all those who are concerned in aiding or abetting, as well as in perpetrating the act, are principals. Under such circumstances there is no room for the question of actual or constructive presence or absence, for, whether present or absent, all are principals. They may be indicted and punished accordingly. Nor is the trial or conviction of any actor indispensible to furnish a right to try the person who aids or abets the act. Each, in the eye of the law, is deemed guilty as a principal. In the present indictment, the offense is in the third and fourth counts laid, by aiding and abetting, in the very terms of the act of congress. If the crime, therefore, could be supposed to be of an accessorial nature, it is truly alleged, according to the fact, not merely according to the intendment of law. We do not consider that the terms 'aid' and 'abet,' used in this statute, are used as technical phrases, belonging to common law, because the offense is not made a felony, and therefore the words require no such interpretation. The statute punishes them as substantive offenses, and not as accessorial, and the words are, therefore, to be understood as in common parlance, to import assistance, co-operation, and encouragement.'

The plaintiff in error in this case is indicted under a special statute (Rev. St. Sec. 5209), and it is evident upon inspection of this statute that its spirit and purpose is to punish every president, officer, cashier, or agent, etc., and likewise to punish every person who aids or abets said officer or agent in any violation of the section. There is no difficulty about the definition of the word 'aid,' and 'abet' is defined as follows: 'To aid countenance, encourage in, to incite, stimulate, or instigate to a criminal act. ' Therefore the purpose of this trial was to ascertain whether any such officer, clerk, or agent had violated the act, and whether Louis Gallot, the plaintiff in error, had aided him in doing so; not for the...