Rieger v. United States

• Citation: 107 F. 916
• Decision Date: 27 February 1901
• Docket Number: 1,392.
• Parties: RIEGER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

107 F. 916

RIEGER v. UNITED STATES.

No. 1,392.

United States Court of Appeals, Eighth Circuit.

February 27, 1901

Two indictments were returned against David V. Rieger, the plaintiff in error, in the United State district court for the Western division of the Western district of Missouri charging him with the commission of various crimes defined by section 5209 of the Revised Statutes of the United States while he was acting as president of the Missouri National Bank of Kansas City, Mo. The two indictments together contained 14 counts, and they were subsequently consolidated for trial before a single jury. Several of the counts were adjudged insufficient at the trial, and a direction was given, as to those counts, to return a verdict in favor of the defendant. The case was submitted to the jury on the remaining counts of the consolidated indictment, and the jury found the accused not guilty on all of said counts except one, as to which they returned a verdict of guilty. The count on which a conviction was obtained charged the accused with the willful misapplication of certain moneys, funds, and credits of the bank, contrary to the provisions of section 5209 of the Revised Statutes; said count being in the following form (italics have been employed, in copying the count, to direct attention more conveniently to certain parts thereof):

'The grand jurors of the United States of America, being duly selected, impaneled, sworn, and charged to inquire of and concerning crimes and offenses in the Western division of the Western district of Missouri, on their oaths present and charge: That on the 8th day of December, A.D. 1894, at the said Western division of the Western district of Missouri one David V. Rieger was the president and one Robert D Covington was the cashier of a certain national banking association, a body corporate then and there known and designated as the Missouri National Bank of Kansas City, in the city of Kansas City, in the county of Jackson and state of Missouri, which said national banking association had been theretofore created, organized, and established, and was then existing and doing a banking business in the city of Kansas City and county of Jackson, in the state of Missouri, in the division and district aforesaid, under the laws of the United States. That they, the said David V. Rieger so being president and the said Robert D. Covington so being cashier of said national banking association as aforesaid, and by virtue of the official relation of the said David V. Rieger as president and the said Robert D. Covington as cashier of said national banking association, and by virtue of the power of control, direction, and management, which said David V. Rieger as such president and said Robert D. Covington as such cashier of said national banking association possessed over the moneys, funds, and credits of said national banking association, on the said 8th day of December, A.D. 1894, then and there at said city of Kansas City and county of Jackson, in the state of Missouri, in the division and district aforesaid, did willfully, wrongfully, unlawfully, and with intent to injure and defraud said national banking association and divers other persons to the grand jurors aforesaid unknown, and without the knowledge and consent of the said national banking association, its board of directors and committees, and for the use, benefit, and advantage of the said David V. Rieger and the said Robert D. Covington and other persons to the grand jurors aforesaid unknown, misapply certain of the moneys, funds, and credits of the said national banking association, to wit, the sum of fifteen thousand three hundred and forty-five ($15,345) dollars, and of the value of fifteen thousand three hundred and forty-five ($15,345) dollars, in the manner and by the means following: That is to say, that they, the said David V. Rieger as president and the said Robert D. Covington as cashier as aforesaid of said national banking association, did on the said 8th day of December, A.D. 1894, willfully, wrongfully, and unlawfully, and with intent to injure and defraud said national banking association and said divers other persons to the grand jurors aforesaid unknown, then and there receive and discount, with the moneys, funds, and credits of said national banking association, a certain promissory note made and drawn by one Benjamin W. Townley, dated on the 8th day of December, A.D. 1894, for the sum of fifteen thousand and six hundred ($15,600) dollars, due and payable on the 11th day of April, A.D. 1894, a more particular description of which said note is to the grand jurors aforesaid unknown, and which said promissory note, when so received and discounted as aforesaid, was not then and there well secured, and they, the said David V. Rieger and the said Robert D. Covington, then and there knew at the time, he, the said Benjamin W. Townley, being then and there wholly insolvent and owning no property subject to execution, as they, the said David V. Rieger and Robert D. Covington, then and there well knew at the time, and which said amount of fifteen thousand three hundred and forty-five ($15,345) dollars, it being the proceeds of the discount of said note aforesaid, was wholly lost to the said national banking association. And so the grand jurors aforesaid, upon their oaths aforesaid, to say that they, the said David V. Rieger as such president and Robert D. Covington as such cashier of said national banking association as aforesaid, in the manner and form and by the means and for the use and benefit and with the intent and without knowledge and consent aforesaid, fifteen thousand three hundred and forty-five ($15,345) dollars, of the said moneys, funds, and credits of said national banking association, wrongfully and unlawfully did then and there willfully misapply, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.'

Following a conviction upon the foregoing count, sentence was imposed on the accused, and the case is before this court for review on a writ of error sued out by him.

Sanborn, Circuit Judge, dissenting.

Frank Hagerman (Willard P. Hall, on the brief), for plaintiff in error.

William H. Wallace, Sp. Asst. U.S. Atty.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

Certain technical objections were made in the lower court to that count of the indictment upon which a conviction was had, and the same objections are urged in this court. These will be first noticed. It is said-- First, that the Townley note referred to in the indictment is not sufficiently described because the name of the payee is not mentioned; second, that the pleader should have alleged that the misapplication of the funds of the banking association was 'Without the knowledge or consent' of the association, its directors and committees, instead of alleging such facts conjunctively by the use of the word 'and'; and, third, that the allegation that the misapplication was 'of the moneys, funds, and credits of said national banking association' is too indefinite for a criminal pleading. Each of these propositions must be adjudged to be without substantial merit and untenable. In some cases, as in prosecutions for forgery or uttering a forged instrument, the instrument constitutes the subject-matter of the offense, and it is necessary to describe the same with great particularity. It will be observed, however, that the Townley note is not mentioned in that part of the count in which the pleader describes the offense complained of in the language of the statute; but it is referred to in that part of the count where the pleader, for the benefit of the accused, and to enable him to prepare his defense, states the manner and means by which the misapplication complained of was accomplished. In that part of the count it was only necessary, we think, to describe the Townley note in such a manner as would advise the accused with reasonable certainty what note was intended; and we entertain no doubt that the description given of the note by its date and amount and the name of the maker was fully adequate to identify it, without mentioning the name of the payee. Such being the fact, further descriptive words ought not to be required in a case like the one at bar, where a written instrument is referred to simply for the purpose of showing the manner and means whereby a misapplication of the bank's funds was accomplished. In such cases it is clear, we think, that the written instrument need not be set out in haec verba, and to hold that the name of the payee ought to have been stated, together with the other marks of identification, would be equivalent to holding that the note should have been copied in full into the indictment. There is even less merit in the contention that want of knowledge on the part of the bank and its officers of a misapplication of the bank's funds should have been alleged disjunctively instead of conjunctively. It would have been sufficient to aver that the misapplication complained of was committed without the knowledge of the bank, its directors and committees, since such an averment would have implied that they did not consent to the wrongful act in question. The pleader, as we construe the allegation, avers that the act was done without their knowledge, and also without their consent, thereby alleging more than was necessary. But the fact that the averment was broader than it need to have been does not injuriously affect the pleading. To hold otherwise would be to indulge in hypercriticism. Neither can it be said that the allegation that the defendant misapplied 'certain moneys, funds, and...