Simpson v. United States

• Decision Date: 07 February 1916
• Docket Number: 2608.
• Citation: 229 F. 940
• Parties: SIMPSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

229 F. 940

SIMPSON et al. v. UNITED STATES.

No. 2608.

United States Court of Appeals, Ninth Circuit.

February 7, 1916

Rehearing Denied March 6, 1916.

Jas. H Hawley, of Boise, Idaho, William H. Atwell, of Dallas, Tex W. A. Stone, of Caldwell, Idaho, and C. H. Lingenfelter, of Boise, Idaho, for plaintiffs in error.

J. L McClear, U.S. Atty., and J. R. Smead, Asst. U.S. Atty., both of Boise, Idaho.

Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.

RUDKIN District Judge.

Section 5209 of the Revised Statutes of the United States relating to national banking associations provides 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 indictment in this case charges that on the 27th day of March, 1913, at Caldwell, in the county of Canyon and state of Idaho, one S.D. Simpson, cashier of a national banking association known as the American National Bank of Caldwell, did willfully, unlawfully, and feloniously, without authority from the directors of said association, and with intent to injure and defraud said association, issue and put forth a certain certificate of deposit drawn upon said association in the sum of $2,500, therein and thereby certifying that there had been deposited by one W. G. Simpson in and with said association the sum of $2,500, whereas in truth and in fact the said W. G. Simpson, to whom said certificate of deposit was so issued and put forth, did not have at the time said certificate of deposit was so issued and put forth, on deposit with said association an amount of money equal to the amount then and there specified in such certificate, or any amount or sum of money whatsoever, as he, the said W. G. Simpson, then and there well knew. It is then further charged that the said W. G. Simpson did, at the time and place aforesaid, unlawfully and feloniously and with the intent to injure and defraud the said association, and without authority from the directors, aid, abet, incite, counsel, and procure the said S.D. Simpson as such cashier to willfully, unlawfully, and feloniously, and with the intent aforesaid issue and put forth the said certificate of deposit in manner and form aforesaid, he, the said W. G. Simpson, then and there well knowing that he did not have the said sum of $2,500 or any other sum on deposit with said association.

On the trial of the action the jury returned a verdict of guilty as to both defendants, and to reverse a judgment entered upon that verdict the present writ of error was sued out. The record contains 31 assignments of error in all; but many of these present the same questions in different forms, and we will now take up such of the assignments as we deem worthy of consideration in the order in which the rulings occurred at the trial, rather than in the order in which the assignments appear in the record.

1. The overruling of a demurrer and motion to quash is assigned as error. It will be observed that the indictment charges that the certificate of deposit was issued and put forth with intent to injure and defraud the association. For this reason it is urged the indictment is duplicitous and bad. There is no merit in this assignment.

'It is a well-settled rule of criminal pleading that, when an offense against a criminal statute may be committed in one or more of several ways, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute. So where a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively as constituting a single offense. Or, as the same rule is frequently stated, where a statute makes either of two or more distinct acts, connected with the same general offense and subject to the same measure and kind of punishment, indictable separately and as distinct crimes when each shall have been committed by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as together constituting but one offense; and this is true, although a disjunctive particle is not employed in the statute, but a conjunction is used which is disjunctive in sense.' 22 Cyc. 380.

Again:

'In the case of substantive acts which are made unlawful when done from particular motives or with particular intents, it is not duplicity to charge the single substantive act in combination with more than one of the expletives which give it character. ' Id. 382.

The rule thus stated is amply supported by the authorities cited. Thus in United States v. Fero (D.C.) 18 F. 901, the statute provided that:

'Every person who shall receive any money or other valuable thing under a threat of informing, or as a consideration for not informing, against any violation of any internal revenue law, shall, on conviction thereof, be punished,' etc.

And it was held that an information charging that the defendant received a certain sum of money under a threat of informing, and as a consideration for not informing, was not duplicitous. See, also, Tiberg v. Warren, 192 F. 458, 112 C.C.A. 596; Ackley v. United States, 200 F. 217, 118 C.C.A. 403.

2. The overruling of a plea of once in jeopardy, or the directing of a verdict in favor of the government on that issue, is assigned as error. The plea of former jeopardy was based on the following facts: A previous indictment had been returned against the defendants charging the same crime, but omitting to charge that the certificate of deposit was issued and put forth 'without authority from the...