Harper v. United States

• Decision Date: 30 April 1909
• Docket Number: 2,741.
• Citation: 170 F. 385
• Parties: HARPER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F. 385

HARPER v. UNITED STATES.

No. 2,741.

United States Court of Appeals, Eighth Circuit.

April 30, 1909

Charles B. Rogers and James S. Davenport, for plaintiff in error.

William J. Gregg, U.S. Atty.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

RINER District Judge.

At the October term of the United States Court for the Northern District of Indian Territory, sitting at Vinita, the plaintiff in error, hereafter called the defendant, was indicted for making a false entry in a report to the Comptroller of the Currency, showing the resources and liabilities of the First National Bank of Miami, Ind. T.

The statute upon which this indictment is based is section 5209 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3497), being a portion of the national banking act and, so far as it applies to this case, the section is as follows:

'Sec 5209. Every president, director, cashier, teller, clerk or agent of any association * * * 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 to deceive any officer of the association, or any agent appointed to examine the affairs of any such association * * * shall be deemed guilty of a misdemeanor * * *.' The indictment contains but one count, and is in the following words:

'United States of America, Indian Territory, Northern District-- ss.:

'In the United States Court for the Northern District of the Indian Territory, sitting at Vinita, October Term, 1904.

'United States vs. S.D. Harper. Indictment for violation of Section 5209, R.S.U.S.

'The grand jurors of the United States of America, duly selected, impaneled, sworn and charged to inquire within and for the body of the Northern district of the Indian Territory, in the name and by the authority of the United States of America, upon their oaths do find, present, and charge that on the 14th day of February, A.D. 1903, and within the Northern district of the Indian Territory, one S.D. Harper, being then and there the duly elected, qualified, and acting cashier of the First National Bank of Miami, Indian Territory, a corporation duly organized and existing under and by virtue of the laws of the United States in force in the Indian Territory, unlawfully and feloniously, and with the unlawful and felonious intent in him, the said S.D. Harper, then and there to deceive one E. B. Frayser, the said E. B. Frayser being then and there the duly elected, qualified, and acting president of the said First National Bank, did make a certain false entry in a certain report showing the resources and liabilities of said First National Bank on the 6th day of February, A.D. 1903, to the Comptroller of the Currency by then and there stating in said report that the liability of him, the said S.D. Harper, as payer to the said First National Bank, was the sum of thirty-four hundred and seventy (3,470) dollars, whereas, in truth and in fact, the liability of him, the said S.D. Harper, as aforesaid, was in the sum of fifty-four hundred and ninety-five (5,495) dollars; and the grand jurors aforesaid, upon their oaths aforesaid, do find, present and charge that he, the said S.D. Harper, then and there well knew and believed the said liability of him, the said S.D. Harper, as payer to the said First National Bank, on said 6th day of February, A.D. 1903, as aforesaid, was then and there in the amount of fifty-four hundred and ninety-five dollars; contrary to the form of statute in such case made and provided, and against the peace and dignity of the United States of America.'

To this indictment the defendant demurred; the demurrer was overruled, an exception taken, and on the same day the case proceeded to trial, resulting in a verdict finding the defendant guilty. The case was then appealed to the Court of Appeals in the Indian Territory, where the judgment was affirmed, and the case is here for our consideration upon a writ of error to that court.

Fourteen errors are assigned, but counsel in their brief group assignments 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, and 13 and argued them together. They all relate to the one general subject-- the sufficiency of the indictment, and the rulings of the court upon objections thereto.

It must be conceded that the indictment is rather loosely and carelessly drawn, and we cannot forego the suggestion, at the outset, that in all cases of this character it is safer and better in the preparation of indictments to follow approved forms and precedents. But the question here is not whether the indictment, as was said by the Court of Appeals for the Ninth Circuit, in Peters v. United States, 94 F. 127, 36 C.C.A. 105, 'might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprised the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. ' United States v. Simmons, 96 U.S. 362, 24 L.Ed. 819; United States v. Carll, 105 U.S. 612, 26 L.Ed. 1135; United States v. Hess, 124 U.S. 483, 8 Sup.Ct. 571, 31 L.Ed. 516; Pettibone v. United States, 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419; United States v. Britton, 107 U.S. 655, 2 Sup.Ct. 512, 27 L.Ed. 520.

It is undoubtedly a well-established rule in criminal pleading that the indictment must be sufficient to fully apprise the defendant of the charge made against him, and that no statute could make valid an indictment that deprived him of such right. But it must, as was said by the Supreme Court in Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830, 'be borne in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent, and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove.'

The indictment sets out the fact that the defendant, on the 14th of February, 1903, was then and there the duly elected, qualified, and acting cashier of the First National Bank of Miami, Ind. T., a corporation duly organized and existing under and by virtue of the laws of the United States. It then proceeds to charge that he unlawfully and feloniously, and with the unlawful and felonious intent to deceive the duly elected, qualified, and acting president of the bank, 'did make a certain false entry in a certain report showing the resources and liabilities of the said First National Bank on the 6th day of February, A.D. 1903, to the Comptroller of the Currency. ' It is objected that this statement is not sufficient to show that the defendant was the cashier of the First National Bank of Miami, a national banking association which was carrying on a banking business, or that the report in which the false entry is charged to have been made was a report made by the association. These objections, we think, are without merit.

The indictment charged that the defendant was the duly elected, qualified, and acting cashier, and that the president was the duly elected, qualified, and acting president. It seems to us that it is rather farfetched to say that this does not sufficiently show that the bank was carrying on a banking business, and that the averment that the report was made to the Comptroller does not necessarily imply that it was made by the association. However that may be, the charge in the indictment is not the making or the failure to make a report required by section 5211 (page 3498), but it is the making of a false entry in a report under section 5209. The failure to make the report or reports required by section 5211 subjects the association to a penalty under section 5213 (page 3499), whereas the penalty for the offense charged in this indictment is fixed by section 5209, which makes it a misdemeanor for a president, director, cashier, teller, clerk, or agent of an association to make a false entry in any report, with intent to injure or defraud the association or to deceive any officer of the association. Had the indictment been against the association for a failure to make the report required by section 5211, it would then have been necessary to aver that the report was one required to be made by the association, but as the report mentioned in the indictment is referred to 'only for the purpose of showing that it was made to the Comptroller, the person authorized by law to call for such a report, it need not be described with technical accuracy. ' Cochran & Sayre v. United States, 157 U.S. 286, 15 Sup.Ct. 628, 39 L.Ed. 704.

The date when the report was made, the date as to which the condition of the bank is given, and the fact that the report was made to the Comptroller of the Currency, are all set out in the indictment with sufficient accuracy, so that we think there is no possibility that any mistake or misapprehension could arise as to the offense charged, or that the defendant could in any way be misled or prejudiced in his defense. Some things may be presumed even in criminal pleading. Where a report is referred to in an indictment, giving its date and the person to whom made, it certainly cannot be necessary to require it to contain the minute conditions as to the time of sending, that it was sent pursuant to a call of the Comptroller, and the contents of the report specifically, as required by another section of the law. The fact that the report in this case was made to the Comptroller of the Currency by the cashier of the bank, stating the condition of the bank upon a certain day, authorizes, we think, the...