Kettenbach v. United States

Citation202 F. 377
Decision Date13 January 1913
Docket Number2,080.
PartiesKETTENBACH et al. v. UNITED STATES. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

George W. Tannahill, of Lewiston, Idaho, Cavanah & Blake, of Boise Idaho, and James E. Babb, of Lewiston, Idaho, for plaintiffs in error.

Peyton Gordon, of Washington, D.C., and Fletcher Dobyns, of Chicago, Ill., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiffs in error were indicted under four indictments-- Nos. 777, 779, 780, and 782-- all charging them with violations of section 5209 of the Revised Statutes (U.S. Comp. St. 1901, p. 3497). They entered a plea of 'not guilty' to each indictment, and thereafter, upon their motion for the consolidation of the indictments, an order was made consolidating the same for trial. The jury returned a verdict of guilty on counts 1, 2, 4, 5, and 6 of indictment 780, and returned a verdict of not guilty on the other indictments and on count 3 of 780.

It is contended that the court below erred in overruling the demurrer of the plaintiffs in error to the indictment, which was interposed on the ground that Kettenbach, who was the president of the Lewiston National Bank, was charged with aiding and abetting Kester, the cashier thereof, in committing the offenses alleged. The statute denounces a penalty against every president, cashier, teller, clerk, or agent of a national bank who makes any false entry in any book, report, or statement of the association, and 'every person who, with like intent, aids and abets any officer, clerk, or agent, in any violation of this section. ' The contention is that, under this statute, one officer of a banking association cannot be charged with aiding and abetting another officer in committing the offense which is described therein, and that the provision in regard to persons who aid and abet any officer clerk, or agent of the association applies not to officers and employes of the bank, but to outsiders, persons not connected with the banking association. The language of the statute is broad enough to include the officers of the bank among those who may be charged with aiding and abetting, for it refers to 'every person,' and such, with possibly one exception, appears to have been the uniform ruling of the courts. United States v. Northway, 120 U.S. 327, 7 Sup.Ct. 580, 30 L.Ed. 664; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Coffin v. United States, 156 U.S. 432, 15 Sup.Ct. 394, 39 L.Ed. 481; Cochran & Sayre v. United States, 157 U.S. 286, 15 Sup.Ct. 628, 39 L.Ed. 704; United States v. Berry (D.C.) 96 F. 842; Gardes v. United States, 87 F. 172, 30 C.C.A. 596. The case which seems to be out of harmony with the foregoing is Richardson v. United States, 181 F. 1, 104 C.C.A. 69. In that case it was contended that the cashier who was indicted under section 5209 should not have been charged as principal but as aider and abettor, because the false entries, although made at his instigation, were made by others. The court ruled against the contention and held that the cashier was a principal, notwithstanding that the entries and items falsified were made by clerks acting under his direction. The court said:

'Where an act is done by the procurement of a person, it is his act in effect, even where it is made a crime.'

What the court said in that case is in line with an expression in the opinion of this court in the case of Peters v. United States, 94 F. 127, 36 C.C.A. 105, in which Judge Hawley, speaking for the court, answering the objection of counsel to the indictment that the cashier was charged in one count with directing and procuring false entries to be made by the bookkeeper, said:

'He is as guilty if he directed false entries to be made by the clerk or bookkeeper as if he made the entry in person.'

But in the Richardson Case the court went on to say that the aiding and abetting referred to in the statute 'applies to those not connected with the bank who instigate, counsel, or incite those who are. ' This was an expression of opinion unnecessary to the decision of the case. The question was whether the defendant in that case could properly be charged as a principal. The court held correctly, we think, that he could be. Kettenbach in this case might properly have been charged as a principal. He cannot complain that he is charged as aiding and abetting. By the express language of section 5209 the offense described, whether committed by the direct act of the accused, or by his aiding and abetting another to commit it, is a misdemeanor, and both offenses are of the same grade, and are subject to the same penalty, and those who commit both are in fact principals. Said the court in United States v. Gooding, 12 Wheat. 475, 6 L.Ed. 693:

'In cases of misdemeanor, all those who are concerned in aiding or abetting, as well as in perpetrating the act, are principals.'

And this doctrine has been expressly applied to cases of prosecution under section 5209. Gallot v. United States, 87 F. 446, 31 C.C.A. 44; United States v. Hillegass (D.C.) 176 F. 445. See, also, Bliss v. United States, 105 F. 508, 44 C.C.A. 324. There was no error, therefore, in overruling the demurrer to the indictment.

We find no merit in the contention that the court erred in consolidating the indictments for trial. Not only was the order made under the authority of section 1024 of the Revised Statutes (U.S. Comp. St. 1901, p. 720), but it was made upon a motion and application of the plaintiffs in error, in which they alleged:

'That each and all of the charges against these defendants or either thereof grew out of one and the same transaction, to wit, the violation of the national banking laws of the United States, and under the law can be tried at one and the same time, and save great expense and many hardships in requiring these defendants to prepare for trial. * * * Wherefore these defendants, and each thereof, respectfully pray that a severance be had as to these two defendants, and that they be tried separately from the other defendants, that each and all the indictments involving these defendants or either thereof be consolidated and be tried at the same time.'

The application was supported by the affidavit of counsel for the plaintiffs in error, in which it was stated that the motion was made in good faith, and not for the purpose of delay, and that it was well founded in law. No exception was saved to the order of consolidation, and the plaintiffs in error are now in no position to assign error to it.

Equally without merit is the contention that the court erred in denying the right of the plaintiffs in error to exercise more than 10 peremptory challenges to jurors. In a second application for a consolidation of the cases and for a severance from Robnett and F. W. Kettenbach, who were indicted with them, the plaintiffs in error said:

'These defendants also waive their right to more than 10 peremptory challenges in case an order is made trying these said indictments at one and the same time, and a severance is granted as to the defendant Clarence W. Robnett, and a severance is granted as to the defendant Frank W. Kettenbach.'

That application was verified by the affidavit of the plaintiff in error William F. Kettenbach. Irrespective of the written waiver of the plaintiffs in error of more than 10 peremptory challenges, the consolidation of the indictment under section 1024 grouped together all the counts in all the indictments so consolidated as if they were separate counts in a single indictment. McElroy v. United States, 164 U.S. 76, 17 Sup.Ct. 31, 41 L.Ed. 355; Porter v. United States, 91 F. 494, 33 C.C.A. 652; Turner v. United States, 66 F. 280, 13 C.C.A. 436. And, the consolidated indictments having thus become in legal effect separate counts in one indictment, the plaintiff in error could exercise only the number of peremptory challenges provided by law for a trial under a single indictment. Krause v. United States, 147 F. 442, 78 C.C.A. 642; Kharas v. United States, 192 F. 503, 113 C.C.A. 109.

Error is assigned to the denial of the application of plaintiffs in error for a bill of particulars as to indictment 780. Their applications for bills of particulars of the charges in the other indictments were allowed, but as to indictment 780 the court said:

'It appears that the indictment in the case at bar, involving charges of false entries, specifically refers to the entries which are alleged to be false, and it is thought that the defendants by the indictment itself are sufficiently advised of the nature and the details of the charges to enable them intelligently to prepare their defense.'

Where the charges of an indictment are so general that they do not fully advise the accused of the specific acts with which he is charged, the court may order that a bill of particulars be furnished him so that he may properly prepare his defense. But the allowance or refusal of the order rests in the sound discretion of the court. In Rosen v. United States, 161 U.S. 29-35, 16 Sup.Ct. 434, 436 (40 L.Ed. 606), the court said that the accused could 'have applied for a bill of particulars, which the court, in the exercise of a sound legal discretion, might have granted or refused, as the needs of justice required. ' Said the court in Breese v. United States, 106 F. 680-682, 45 C.C.A. 535, 537:

'The motion was addressed to the discretion of the court, and its refusal was a proper exercise of this discretion.' See, also, Dunlop v. United States, 165 U.S. 486-491, 17 Sup.Ct. 375, 41 L.Ed. 799; State v. Rathbone, 8 Idaho, 161, 67 P. 186. In Commonwealth v. Giles, 1 Gray (Mass.) 466, a case
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