Peck v. United States

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: ALSCHULER, EVANS, and SPARKS, Circuit
• Citation: Peck v. United States, 65 F.2d 59 (7th Cir. 1933)
• Decision Date: 06 June 1933
• Docket Number: No. 4787.,4787.
• Parties: PECK v. UNITED STATES.

65 F.2d 59 (1933)

PECK v. UNITED STATES.

No. 4787.

Circuit Court of Appeals, Seventh Circuit.

April 7, 1933.

Rehearing Denied June 6, 1933.

Gallagher, Rinaker, Wilkinson & Hall and Charles A. Williams, all of Chicago, Ill., for appellant.

Dwight H. Green, U. S. Atty., and Owen A. West, Asst. U. S. Atty., both of Chicago, Ill., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge (after stating the facts as above).

Appellant includes in his assignments of error attacks on the sufficiency of the indictment, the rulings of the court excluding evidence by him offered, and the sufficiency of evidence to support the conviction.

Supplementing his criticism of the order of the court overruling his demurrer to the indictment, appellant contends that the court should at least have required the Government to have furnished him with a bill of particulars.

Stripped of repetition and unnecessary legal verbiage, each count of the indictment stated that appellant, while acting as president of the First National Bank of Palatine, and "with intent to injure and defraud" this member bank of the Federal Reserve system, "unlawfully, willfully, knowingly and feloniously did then and there embezzle a large sum of money * * * (the further particulars whereof being to the grand jurors unknown)"; which money, it is alleged, was then and there the bank's property and which came into the possession, care, custody, and control of appellant as its president and by virtue of his fiduciary relationship to said bank. One count fixed the amount embezzled at $4,500 and the date as August 16, 1929. The other count fixed the amount embezzled at $20,665.50 and the date, September 17, 1929.

Appellant argues that the indictment failed to allege facts necessary to bring the case within the requirements of the statute, and that it failed to inform him with sufficient particularity of the details of the offense with which he was charged to enable him to intelligently prepare for trial.

With appellant's contentions in regard to the sufficiency of the indictment, we can not agree. The indictment charged the offense in the language of the statute (section 592, title 12, U. S. C.) and contained further allegations showing the fiduciary relationship which existed, etc.

The word "embezzle," as used in this section, has a well defined and well understood meaning. To say that appellant embezzled moneys or property of the bank was to charge him with having converted to his own use moneys or property which had been entrusted to him or had come into his possession when he occupied towards the bank a fiduciary relationship. U. S. v. Britton, 107 U. S. 655, 669, 2 S. Ct. 512, 27 L. Ed. 520; Batchelor v. U. S., 156 U. S. 426, 429, 15 S. Ct. 446, 39 L. Ed. 478; U. S. v. Mason (C. C.) 177 F. 552, 558; U. S. v. Harper (C. C.) 33 F. 471, 474; State v. Hudson, 93 W. Va. 435, 117 S. E. 122; People v. O'Farrell, 247 Ill. 44, 93 N. E. 136; Teston v. State, 50 Fla. 137, 138, 39 So. 787.

Where the crime defined by the statute is as specific as it is here, it is sufficient if the indictment charges appellant with its commission in the language of the statute. Jelke v. U. S. (C. C. A.) 255 F. 264, 275. The rule was there stated as follows:

"An indictment is generally sufficient which charges a statutory crime substantially in the words of the statute, except in such cases where other precedents have been firmly established in analogous offenses at common law, or where such a charge would not fairly inform the accused of the nature of the charge preferred against him."¹

In support of his attack on the indictment because of its failure to describe with particularity the property embezzled, appellant, relying upon the language in Moore v. U. S., 160 U. S. 268, 16 S. Ct. 294, 40 L. Ed. 422, argues that an indictment is fatally insufficient which describes the property as a specific sum of money.

Without determining whether the indictment would be fatally defective if it merely charged the embezzlement of "a large sum of money * * * to wit, the sum of $4,500.00," it is sufficient answer to this argument to point out that the indictment, in addition to describing the property as quoted immediately above, also alleges "a further and more particular description thereof being to the grand jurors unknown." This added allegation, under numerous authorities, successfully avoids attack on the indictment for fatal weakness in the respect just noted.²

Bill of Particulars. Such an indictment as we are here considering, while good as against demurrer or a motion to quash, should, however, be supported by a bill of particulars if the defendant requests one. In the instant case a bill of particulars was requested by appellant and refused by the court. This, it seems to us, was an abuse of discretion. Merely to charge an officer of a bank with having embezzled $4,500 would not always inform him of the transaction with sufficient particularity to permit him to prepare properly for trial. True, the date of the embezzlement stated in the indictment helped to identify the transaction upon which the charge of embezzlement was predicated. The prosecution, however, was not required to adhere to the date as alleged, and the accused therefore was not helped a great deal by its insertion.

It does not follow, however, that a reversal of the judgment is necessary because of this abuse of discretion and the court's refusal to order the bill of particulars. The bill should have been furnished, but before this court can direct a reversal, the record should show facts from which we may infer prejudice to appellant by reason of such refusal. In other words, a bill of particulars should be furnished when the indictment gives no more specific information than this one. But we must look to the record to see whether appellant was taken by surprise by the government's proof or did not know what issue to meet or was otherwise prejudiced. People v. Emaus, 207 Mich. 451, 174 N. W. 180; United States v. River Rouge Co., 269 U. S. 411, 46 S. Ct. 144, 70 L. Ed. 339; Linn v. U. S. (C. C. A.) 251 F. 476; Dillard v. U. S. (C. C. A.) 141 F. 303; United States v. Rio Grande Irrigation Co., 184 U. S. 416, 22 S. Ct. 428, 46 L. Ed. 619; Ruling Case Law "Appeal and Error" § 203; Corpus Juris "Appeal and Error" § 2917.

An examination of the record in the instant case leaves us with no doubt as to appellant's knowledge of the two transactions upon which the prosecution relied to establish the two embezzlements. He was not surprised by the Government's proof. Neither was he left in darkness as to the charges which he was called upon to meet. The testimony shows that before the bank closed and before appellant resigned as president, the directors had charged him with having collected two mortgages which belonged to the bank, one for $4,500 and the other, the Quindel mortgage for $23,000 (which Peck sold at a discount of 10%), and with having retained the money thus collected. The evidence showed the passing of two checks to appellant, one for $4,500 bearing date of August 16, 1929, and one for $20,665.50 bearing date of September 17, 1929, which corresponded both as to amounts and dates with those set forth in the indictment. The evidence further showed that demand was made of appellant for the payment of both mortgages, and he paid the bank the $4,500 mortgage. The controverted issue over each charge was limited to deductions and conclusions drawn from the fact that appellant received the notes and mortgages, collected them, but did not (promptly at least) turn over the moneys received.

Likewise, the controversy between the parties as to the two alleged embezzlements turns not on a dispute as to the facts surrounding the sale of the mortgage and its collection, etc., but upon appellant's own explanation of what he did with the money and why he thus acted.

We would be better satisfied that no error was committed by the court's wrongfully refusing appellant a bill of particulars if the evidence on the merits of the case more strongly supported the verdict. While we recognize that the jury rather than this court must weigh the evidence and determine the guilt or innocence of one accused of crime, we are none too willing to hold an error harmless if left in doubt as to the guilt of the accused.

In this case the evidence as to one count is not free of doubt. On the other hand the penitentiary sentence was the same on each count and the sentences were made to run concurrently. We must reach our conclusion, however, as to the effect of the erroneous ruling on appellant's demand for a bill of particulars upon the facts bearing upon that issue. It cannot be affected by evidence dealing with an entirely different and unrelated issue. We therefore conclude that there was no prejudice, and therefore no reversible error in the court's refusal to grant the requested bill of particulars.

Appellant argued that the evidence failed to support the verdict. To sustain this contention he points to the fact that the indictment charges the defendant with the embezzlement of a sum of money, whereas the most that can be said of the proof is that it showed him to have received bank checks. This variance between the allegation and the proof is not fatal. Cooper v. U. S., 58 App. D. C. 325, 30 F.(2d) 567; People v. Gorman, 94 Cal. App. 397, 271 P. 361; McGuire v. People, 83 Colo. 154, 262 P. 1015; People v. Roberts, 85 Cal. App. 697, 259 P. 1009; Brown v. State, 92 Fla. 538, 109 So. 438; Gurley v. State, 157 Ark. 413, 248 S. W. 902; Kent v. State, 143 Ark. 439, 220 S. W. 814.

The argument likewise fails to consider the further testimony that the checks by him received were made payable to him and were by him cashed at another bank and the proceeds deposited to his credit. In other words, the receipt of the check by appellant did not constitute the embezzlement. An endorsement of the check by...