United States v. Heinze

• Decision Date: 02 March 1908
• Citation: 161 F. 425
• Parties: UNITED STATES v. HEINZE.
• Court: U.S. District Court — Southern District of New York

161 F. 425

UNITED STATES v. HEINZE.

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

March 2, 1908

Wm. J Wallace, Edward Lauterbach, and John C. Tomlinson, for demurrer.

Henry L. Stimson, U.S. Atty., opposed.

HOUGH District Judge.

1. The first 15 counts are said to be bad for duplicity, in that they state two distinct offenses, each requiring different proof to establish it, viz.: (1) An offense under section 5208 (U.S. Comp. St. 1901, p. 3497); i.e., the certification of a check when the drawer has not on deposit with the bank 'an amount of money equal to the amount specified in such check.' (2) An offense under Act July 12, 1882, c. 290 Sec. 13, 22 Stat. 166 (U.S. Comp. St. 1901, p. 3497); i.e the certification of a check 'before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association.'

Section 5208 does not create any criminal offense. That section and the act of 1882 must be read together, and when so read they denounce but one crime, and not two crimes. The one crime that is denounced is certifying a check under either (a) two sets of circumstances, or (b) one set of circumstances described in two ways. Regarding the descriptive words used in section 5208 and those used in the act of 1882 as setting forth different acts:

'It is well settled that in a criminal pleading, 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 as separate and distinct crimes when committed by different persons or at different times, they may, when committed by the same person at the same time, be coupled in one count as constituting one offense. ' U.S. v. Delaware, L. & W.R. (C.C.) 152 F. 269, 273.

But, whether these two sets of descriptive words be regarded as conveying different meanings or not, the exact point raised by this demurrer was before the court in U.S. v. Potter (C.C.) 56 F. 83. It was there urged (page 85) that certifying checks before sufficient money is on deposit is one offense, and certifying checks before the amount is entered upon the books of the bank is another, and that therefore some counts, which set out circumstances covering both offenses, were bad for duplicity; and this point was explicitly overruled by Putnam, J. (page 92).

2. It is also urged, under the motion to quash, that the first 15 counts are bad, in that they do not set out totidem verbis the written certifications which an examination of the last 16 counts shows to have existed upon the checks referred to in all the counts. The word 'certify,' as applied to bank checks and as used in the statutes under consideration, has become a term of art, and the court is bound to take judicial notice of its meaning. When it is alleged that one 'certified' a check, that word implies that certain words have been written or printed upon said check, and that the check passed from the custody of the bank into the hands of some other party, and that thereby the person certifying created an obligation of the bank. Potter v. U.S., 155 U.S. 444, 15 Sup.Ct. 144, 39 L.Ed. 214.

This indictment alleges a certification. If under it there be not proven such actions or course of business as are necessarily and legally implied from the word 'certify' or 'certification,' then there is a variance between the count and the proof. It does appear to have frequently occurred in indictments for the same offense, as is alleged by this instrument, that the exact words of certification were set out; but no case is cited showing that this course is necessary, and it appears to me that the ruling of the Supreme Court in the Potter Case as to the meaning of the word 'certification' renders the exact letters and figures declaring the certification matters of proof, rather than pleading.

This is consonant with the general rule that:

'The rule which requires a setting out of the entire instrument or its tenor is not applicable, unless it touches the very pith of the crime itself, as in forging or counterfeiting. ' U.S. v.. Grunberg (C.C.) 131 F. 137.

And, further:

'The rule which requires a setting out of the entire instrument or its tenor seems limited mainly, if not wholly, to cases of forging, counterfeiting money, and...