United States v. Cadwallader

• Decision Date: 07 December 1893
• Citation: 59 F. 677
• Parties: UNITED STATES v. CADWALLADER.
• Court: U.S. District Court — Western District of Wisconsin

59 F. 677

UNITED STATES v. CADWALLADER.

United States District Court, W.D. Wisconsin.

December 7, 1893

Samuel A. Harper and J. J. Fruit, for the United States.

Spooner Sanborn & Kerr, for defendant.

BUNN District Judge.

The defendant was indicted under section 5209, Rev. St. U.S which reads as follows:

'Every president, director, cashier, teller, clerk or agent of any association who embezzles, abstracts, or wilfully 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 contains ten counts, in each of which, except the first, the defendant is charged with having at various dates, and on and between various times specified, as president and one of the directors of the Superior National Bank at Superior, Wis., embezzled, abstracted, and willfully misapplied the moneys and funds of said bank. In each of said counts are also set out the particular facts constituting such embezzlement, abstraction, and willful misapplication of the moneys of the bank. The defendant has demurred to each of these counts for duplicity, on the ground that they, and each of them, charge three distinct offenses under the statute. The question is whether the counts are liable to this objection. And this, as a question of criminal pleading, independent of statute, would seem to turn upon a consideration of whether the statute describes only one offense or different and distinct offenses. If the statute describes only different stages, degrees, or phases of one and the same offense, these degrees or phases may undoubtedly all be set forth and charged in the same count of the indictment; but if the statute defines different and distinct offenses, each requiring different proof to establish it, there can be little doubt that they should not be joined in the same count, though they may all, or any of them, be united in different counts in the same indictment.

There has been in this country and in England a very considerable relaxation of the common-law rule that there can be but a single offense charged in one indictment; and the line of departure and distinction has been between offenses of a high grade, such as were denominated 'felonies' at common law, requiring either capital punishment or imprisonment for a term of years in the penitentiary, with or without hard labor, and those of a lower grade, denominated 'misdemeanors,' the punishment of which is by fine or imprisonment in the common jail, or both. In the former class of cases there has never been much letting down from the strictness of the common-law rule that only one substantive offense could be charged in the same indictment, though differently set out in several counts, to meet the evidence. It has been considered greatly prejudicial to the defense of a prisoner to be put upon trial at the same time for two distinct crimes of a high grade, such as murder, manslaughter, rape, arson, burglary, grand larceny or embezzlement. These were all felonies at common law, and I think there is no example or precedent by which a defendant has been or might be put upon trial for more than one crime in the same indictment. It would prejudice the prisoner in his defense, and lead to much confusion, if not injustice. Such has been the general rule of criminal pleading by the common law, both in England and in this country. The statutes, however, in England, and presumably in most of the states, have relaxed the rule, by allowing in misdemeanors and purely statutory offenses, two or more distinct offenses to be united by different counts in the same indictment, and putting the defendant upon trial for all at once. I do not know of any case, however, where the prosecution has been allowed to unite two or more distinct offenses in the same count of an indictment; and such a thing, if allowed, must necessarily lead to much confusion and embarrassment. How is the defendant to plead, and how are the jury to find their verdict? There is no precedent or practice for allowing a prisoner to plead guilty to one portion of a count and not guilty to another, or for the jury to find the defendant guilty under one part and not guilty under another part.

It is seen that by the section of the statute above quoted congress has said that the person offending in any or either of the ways prescribed shall be deemed guilty of a misdemeanor, but probably this fact should determine nothing in regard to the degree of strictness which the law would require in pleading as the punishment prescribed--not less than five nor more than ten years' imprisonment--makes the offense an infamous one under the decisions of the United States supreme court, within the meaning of that provision of the constitution which says that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935; Mackin v. U. S., 117 U.S. 348, 6 S.Ct. 777; Parkinson v. U. S., 121 U.S. 281, 7 S.Ct. 896; U.S. v. De Walt, 128 U.S. 393, 9 S.Ct. 111; In re Claasen, 140 U.S. 205, 11 S.Ct. 735. In one of these cases--that of Mackin v. U. S.--the usual distinction in this country made between felonies and misdemeanors, before referred to,...