Richardson v. United States

Citation181 F. 1
PartiesRICHARDSON v. UNITED STATES.
Decision Date22 August 1910
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

[Copyrighted Material Omitted]

Ben. C Tunison and James A. Wakefield, for plaintiff in error.

R. M Gibson, Asst. U.S. Atty.

Before BUFFINGTON and LANNING, Circuit Judges, and ARCHBALD, District judge.

ARCHBALD District Judge.

The defendant, as cashier of the Cosmopolitan National Bank of Pittsburg, Pa., was convicted of making false entries in the books of the bank and in the reports of its financial condition, made to the Comptroller of the Currency, with intent to injure and defraud the bank and to deceive the directors and the agents appointed by the comptroller to examine it. The entries falsified were set out in the indictment, and the defendant was to that extent advised of the exact charge which was made against him; but it is now contended that in several respects the indictment is not sufficient; that it varies from the evidence; that the defendant should not have been charged as a principal, but as an aider and abettor, the entries having been made by the hands of others; and that a conviction should not have been allowed, as it was, on the evidence of accomplices, without cautioning the jury as to the weight to be given to their testimony.

The indictment is based on Rev. St. Sec. 5209 (U.S. Comp. St. 1901, p. 3497), which reads as follows:

'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, makes any acceptance, assigns any note, bond, draft, 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.' The defendant being charged with having caused the false entries in question to have been made by others, it is contended that the names of the parties by whom they were made should have been given, and that without this, even after verdict, the indictment is not sufficient. In United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819, the defendant was charged with unlawfully causing or procuring a still and boiler to be used for the purpose of distilling liquor in a building where vinegar was being manufactured, contrary to the provisions of the statute in such case made and provided; and it was held that the defendant himself not being charged with using the still and boiler, but only with causing or procuring them to be used by others, the names of the persons by whom it was done should have been given, it being neither impracticable nor unreasonably difficult to do so, and it not being stated that the names of such parties were to the grand jury unknown. This was approved in United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135, where it was held that an indictment for making and passing counterfeit securities of the United States, in omitting to state that the defendant at the time of the uttering knew them to be counterfeit, failed to state a crime within the provisions of the law. It is not enough as is there said and as was said in the Simmons Case, to set forth the offense in the words of the statute, 'unless these words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. ' So in Blitz v. United States, 153 U.S. 308, 14 Sup.Ct. 924, 38 L.Ed. 725, where the defendant was charged with having impersonated and voted in the name of another at an election held for the choice of a representative in Congress, it was held that, in order to make out an offense under the statute, it was necessary to charge that the defendant in fact voted for such representative, and not simply that he voted at an election where a representative was voted for by others, his vote having been possibly confined to state officers. These decisions are cited and relied on by the defendant, as showing the particularity of averment, which is required in criminal matters even under the modern practice; and especially the Simmons Case, as expressly ruling that when an offense is committed through the instrumentality of others, the names of those by whom it was committed must be given. These decisions are highly technical, and seem to carry the law to the verge, but must nevertheless be respected if they are found to apply. As possibly qualifying them, however, in the recent case of Burton v. United States, 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, on an indictment against a United States Senator for practicing before a federal department, in violation of the statute, it was held that the defendant was not entitled to a disclosure in the indictment of all the particular means so employed. The question in every such case is whether, taking the indictment as it stands, the defendant is sufficiently advised of the charge which is made, so as to enable him to prepare his defense and to plead the judgment as a bar to a subsequent prosecution. N.Y. Cent. R.R. v. U.S., 212 U.S. 481, 29 Sup.Ct. 304, 53 L.Ed. 613; Standard Oil Co. v. U.S. (C.C.A.) 179 F. 614. Properly considered, neither of the cases relied on by the defendant goes further than this or proceeds upon a different ground. It is not decided, for example, in the Simmons Case, that in every instance where an offense is charged to have been committed through the agency of another, the person by whom it was done must be named. The naming of the person in that case was deemed requisite; that is all. The offense there was most meagerly charged, the bare words of the statute defining it being used. And it may very well have been considered necessary, in consequence, in order to identify the act relied on for a conviction, to require that the name of the person by whom it was claimed to have been done should be given. In the present instance, however, nothing of the kind can be said. With great particularity, and at considerable length, the entries, the falsification of which is charged, are described, their position by book, report, column, and line in each case having been given. The exact part taken by the defendant in the falsification was unimportant, save only as he was shown to be involved or responsible for it, as he undoubtedly was. It was equally an offense, whether he did it himself or procured it to be done through the medium of others, and with the particulars indicated, it was not necessary, where done by another, to charge by just whom it was so done. The entry falsified and the purpose of it were the important things, as to which the fullest information was given. The ordinary course of business, with which the defendant was familiar would disclose the rest. It was not, as in the Simmons Case, where the use of the boiler and still constituted a single unrelated act, in no way connected with the business carried on at the place and with which the defendant had possibly nothing to do. It is to be noted, also, in the present instance, that the defendant is charged in the indictment with making the false entries, as well as causing and procuring them to be made, a direct, as well as an indirect participation, being thus averred, the one of which would be good after verdict and sufficient to sustain a conviction, even if the other was not. Crain v. United States, 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097. But without resting the case upon that, we are not persuaded that under the circumstances the indictment was not sufficiently specific, so as to meet all the requirements of the law as it stood; and the conviction based on it is not therefore to be disturbed.

There is nothing in the contention that the defendant should have been charged as aiding and abetting, and not as a principal the entries having been made by others who were guilty participants in the crime. No doubt the entries and items falsified were the work of others, but they were clerks, acting under the direction of the defendant, who was thus legally as well as morally bound. They may or may not have acted with knowledge, so as to be guilty themselves. But the case does not turn upon that point. Where an act is done by the procurement of a person it is his act in effect, even where it is made a crime. It is true that, in case of a felony, in order to be answerable as principal, the person must have been actually or constructively present where...

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