Matters v. United States
| Decision Date | 11 July 1917 |
| Docket Number | 4626. |
| Parties | MATTERS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John L Webster, of Omaha, Neb., for plaintiff in error.
A. W Lane, Sp. Asst. U.S. Atty., of Lincoln, Neb. (T. S. Allen U.S. Atty., of Lincoln, Neb., on the brief), for the United States.
Before HOOK, SMITH, and CARLAND, Circuit Judges.
Matters was convicted and sentenced upon an indictment which in 20 counts charged him with violating section 5209, Rev. St. (Comp. St. 1916, Sec. 9772). The indictment was attacked by motion to quash and by demurrer. The ruling of the trial court in sustaining the indictment is assigned as error, but counsel have not seriously pressed the assignment, further than to draw our attention to what seems to counsel a misconception on the part of the trial court of the essential elements of the crime denounced by the statute. We have examined the indictment and have no doubt of its sufficiency.
The indictment was returned on June 8, 1914, and on December 19, 1914, counsel for defendant, without leave of court, filed a third plea in abatement. The trial court refused to rule upon this plea, and its refusal is assigned as error. The right to file a plea in abatement for irregularity in the drawing of the grand jury, so long after the return of the indictment, was not absolute, but was subject to the sound discretion of the trial court. Its refusal to rule upon the plea was equivalent to a refusal to allow the plea to be filed. In view of the fact that there had been two prior pleas in abatement ruled upon, and that the third plea was presented more than 7 months after the indictment was returned, there was no error in the refusal of the court to consider the plea. Agnew v. United States, 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624; Lowden v. United States, 149 F. 673; Moffatt v. United States, 232 F. 522, 146 C.C.A. 480; United States v. Rintelen (D.C.) 235 F. 787.
The sixteenth count of the indictment charged Matters with aiding and abetting one Luebben, president of the First National Bank of Sutton, Neb., in the misapplication of the funds of the bank, with the intent on the part of each to injure and defraud the same. It was alleged in this count that Luebben as president, without any consideration passing to the bank from any one, on June 4, 1913, issued a certificate of deposit at the request of Matters, payable to the order of one Mary E. Johnson, for the sum of $1,500; that Matters delivered the certificate of deposit to the payee thereof in payment of a debt and obligation owing by Matters to said Mary E. Johnson; that the amount of said certificate was subsequently paid by Luebben as president of the bank to the payee, without any consideration passing to the bank therefor. Matters at the trial did not dispute that the certificate of deposit was delivered by him to Mary E. Johnson in part payment of his personal debt, but contended that the certificate was obtained from the bank in a legitimate way. The prosecution, for the purpose of proving the charge made in the sixteenth count, placed Mary E. Johnson, the payee named in the certificate of deposit, upon the stand as a witness. Her testimony, reduced to narrative form, covers over 20 pages of the record, and cannot be detailed in this opinion. It is sufficient to say, however, that the witness, over the repeated objections and exceptions of counsel for Matters, was allowed to narrate the history of a financial transaction between herself and Matters, extending over a period of 3 years and 6 months prior to the issuance of the certificate of deposit.
The witness was allowed...
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