United States v. Eno

• Decision Date: 16 May 1893
• Citation: 56 F. 218
• Parties: UNITED STATES v. ENO.
• Court: U.S. District Court — Southern District of New York

56 F. 218

UNITED STATES v. ENO.

United States Circuit Court, S.D. New York.

May 16, 1893

John O. Mott, Asst. U.S. Atty.

Geo Bliss and Frank Hiscock, for defendant.

BENEDICT District Judge.

This case comes before the court for the first time upon a motion to quash the indictment. The indictment, found on the 17th of June, 1884, contains several counts which differ from each other only in the amount of money charged to have been misapplied, and in the name of the payee of the money. What is there said in regard to the first count is therefore applicable to all the counts.

The first count, after alleging that the defendant was president of the Second National Bank of the City of New York, an association carrying on a banking business in the city of New York under the act of congress approved June 3, 1864, charges as follows:

'The defendant unlawfully and willfully, and with intent to injure and defraud the said association for the use benefit, and advantage of himself, the said John C. Eno did misapply certain of the money and funds of said association, to wit, the sum of $100,000, which said sum of money he, the said John C. Eno, then and there, with the intent aforesaid, paid and caused to be paid from the moneys and funds of said association to Arthur Dyett and Abraham R. L. Norton, who then and there carried on business under the firm name and style of A. Dyett & Co.'

To this charge it is objected that it is insufficient in law--First, because the facts stated do not show that the payment by the defendant of $100,000 to A. Dyett & Co. was a criminal misapplication of the funds of the bank by the defendant; second, because it is not charged that the money paid A. Dyett & Co. was converted by the defendant to his own use; third, because the indictment fails to allege that the misapplication charged was without the knowledge and consent of the directors of the bank; fourth, because it does not charge that the misapplication was made by Eno as president of the bank.

The law controlling on this occasion has been settled by the supreme court of the United States. The only duty devolving upon this court in this case is to apply that law to the indictment found against the defendnat. By the law declared by the supreme court in Britton's Case, 107 U.S. 669, 2 S.Ct. 512, an indictment for a misapplication of the funds of a national bank must specify the particulars of the appropriation, so as to show the application charged to be a criminal misapplication, as distinguished from applications that are unlawful but not criminal. 'There must be averments to show how the application was made, and that it was an unlawful one.' And in Northway's Case, 120 U.S. 332, 7 S.Ct. 580, it is said by the supreme court:

'It is of the essence of the criminality of the misapplication that there should be a conversion of the

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