Sheridan v. United States

• Citation: 236 F. 305
• Decision Date: 16 October 1916
• Docket Number: 2705.
• Parties: SHERIDAN v. UNITED STATES. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

236 F. 305

SHERIDAN v. UNITED STATES. ^[1]

No. 2705.

United States Court of Appeals, Ninth Circuit.

October 16, 1916

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

John L McNab, of San Francisco, Cal. (James W. Ryan, of San Francisco, Cal., of counsel), for plaintiff in error.

Clarence L. Reames, U.S. Atty., and Robert R. Rankin, Asst. U.S. Atty., both of Portland, Or.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was convicted on two counts of an indictment which charged him with the violation of section 5209, Revised Statutes (section 9772, Comp. St. 1913), by abstracting and converting to his own use the moneys and funds of a national banking association, with intent to defraud the association and the depositor of the money.

It is contended that the demurrer to the indictment should have been sustained on the ground that the plaintiff in error is therein charged with the unlawful abstraction and conversion of a special deposit. The contention that the deposits were special is based on the allegation contained in each count that the deposit which was alleged to have been abstracted and converted was a deposit made for the 'sole use and benefit' of the depositor; and it is argued that to abstract and convert a special deposit is not an offense against the United States. But the allegation so referred to is not all that the indictment charges as to the nature of the deposits. It is also alleged in each count that the property abstracted and converted consisted of 'certain moneys, funds and credits of the national banking association,' and that the depositor in each case 'was a depositor and creditor' of the bank, and that the intent of the plaintiff in error was 'to injure and defraud said national banking association and said depositor and creditor. ' All the allegations, when taken together, can only mean that the deposit referred to in each count was a general deposit, creating the relation of debtor and creditor between the depositor and the bank. In a sense the primary purpose of a general depositor in a bank is to deposit his money for his own 'sole use and benefit,' and not for the use and benefit of another. It is evidently in that sense that the words are used in the indictment. The purpose of them is to show that the money deposited was the property of the depositor, and that it created a fund in the bank which he, and no other, had the right to draw out by check. It is not alleged in the indictment that there was any agreement as to the character of the deposit, or that the deposit was accompanied with a request that the money be kept apart.

'Where money or its equivalent is deposited in a bank without any special agreement, the law implies that it is to be mingled with other funds of the bank, and the relation of creditor and debtor is created, and the deposit is general; the bank becoming the owner of the fund. ' Michie on Banks and Banking, p. 1290.

'A special deposit is a delivery of property, securities, or even money to the bank for the purpose of having the same safely kept and the identical thing deposited returned to the depositor.' 7 Corpus Juris, 630.

'Where money, not in a sealed packet, or closed box, bag or chest, is deposited with a bank or banking corporation, the law presumes it to be a general deposit, until the contrary appears; because such deposit is esteemed to be the most advantageous to the depositary, and most consistent with the general objects, usages, and course of business of such companies or corporations.' 7 Corpus Juris, p. 631, note (a).

Tested by these rules, we entertain no doubt that the deposit referred to in each count is therein alleged to have been a general deposit to the credit of the depositor.

It is contended that the demurrer to the indictment should have been sustained on the ground that section 5209 defines an offense for which no punishment is provided. It is said that, since the offense described in that section is therein specifically designated a misdemeanor, and section 335 of the federal Penal Code of 1910 provides that all offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies, and all other offenses shall be demmed misdemeanors, it follows as a corollary of the statute that no misdemeanor shall be punished by a term exceeding one year, and it is urged that the provision for the milder punishment should be held to repeal the older and severer punishment. The contention cannot be sustained. Long prior to the enactment of the federal Penal Code of 1910 the Supreme Court had held, in substance, that while the offense is in the statute designated a misdemeanor, it is in fact an infamous crime. In United States v. De Walt, 128 U.S. 393, 9 Sup.Ct. 111, 32 L.Ed. 485, it was held that the offense denounced in section 5209 is an infamous crime, for which the defendant could not be held to answer on information, but only on presentment or indictment. In re Claasen, 140 U.S. 200, 11 Sup.Ct. 735, 35 L.Ed. 409, is to the same effect. The court there said of the crime denounced in section 5209:

'In determining whether the crime is infamous, the question is whether it is one for which the statute authorizes the court to award an infamous punishment.' In Folsom v. United States, 160 U.S. 121, 16 Sup.Ct. 222, 40 L.Ed. 363, the court said:

'The offense denounced by section 5209 of the Revised Statutes is punishable by imprisonment not less than five nor more than ten years, and is therefore an infamous crime.'

Section 335 of the Penal Code has no effect upon section 5209 except to define as a felony the offense therein described.

It is urged that the indictment is defective, in that it merely charges the offense in the language of the statute; that it contains no sufficient description of the property charged to have been abstracted; that the acts constituting the fraud, or intention to defraud, are not stated; that there is failure to charge the violation of a right of either the bank or a depositor; that the allegation that the abstraction was accomplished by means of a memorandum check is unintelligible and repugnant to the other charges; and that there is failure to charge that the abstraction was made without the knowledge or consent of the directors of the bank. We find that the indictment goes further than to charge the offense in the language of the statute. Count 4, for example, charges that the plaintiff in error was the president of the bank; that on April 15, 1911, he, being such president, did willfully and unlawfully abstract and convert to his 'own use, benefit, and advantage, certain moneys, funds, and credits' of said bank of the amount and value of $5,000, 'a more particular description of which is to this grand jury unknown, from and out of the moneys, funds, and credits of said national banking association,' held by the same as a deposit for the sole use and benefit of one Laura M. Verrill, a depositor and creditor of the bank, by means of a certain instrument, designated a memorandum check, without the knowledge and consent of said national banking association, and with the intent then and there on the part of him to injure and defraud the said national banking association and said depositor and creditor. No specific objection to the form of the indictment was made by demurrer or otherwise. The sole ground of demurrer was that the matters stated 'are not sufficient in law.' Unless objections to the form of an indictment are specifically pointed out by demurrer or are otherwise taken advantage of on the trial, it is too late, after verdict, to urge such objections, unless it is apparent to the court that they affect the substantial rights of the accused. Holmgren v. United States, 217 U.S. 509, 523, 30 Sup.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778; Armour Packing Co. v. United States, 209 U.S. 56, 84, 28 Sup.Ct. 428, 52 L.Ed. 681; Connors v. United States, 158 U.S. 408, 411, 15 Sup.Ct. 951, 39 L.Ed. 1033.

It is not ground of demurrer to an indictment under section 5209 that the property is described as certain moneys, funds and credits of the bank of a specified amount in dollars, as it was described in this case, where, as here, it is followed by the averment that a more particular description is to the grand jury unknown. Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Breese v. United States, 106 F. 680, 45 C.C.A. 535; United States v. Voorhees (C.C.) 9 Fed. 143.

The indictment sufficiently charges the manner of the alleged abstraction and conversion. United States v. Eastman (C.C.) 132 F. 551; Dickinson v. United States, 159 F. 801, 86 C.C.A. 625. It alleges that the money was abstracted without the knowledge and consent of the national banking association. It was not necessary to allege in addition that it was done without the knowledge or authority of the directors. Flickenger v. United States, 150 F. 1, 79 C.C.A. 515; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; United States v. Morse (C.C.) 161 F. 429. And it was sufficient to charge that the abstraction was done by means of a memorandum check, for the means of abstraction are immaterial. United States v. Harper (C.C.) 33 F. 471; United States v. Breese (D.C.) 131 F. 915.

In the first count it was charged that the money so taken by plaintiff in error was converted to his own use and benefit and to the use and benefit of one B.C. Agee. It is said that this allegation is ambiguous and uncertain because it does not show what part was received by either of the parties. But if the money was willfully and unlawfully abstracted without the authority of the bank, and with the intent to defraud the bank and its...