United States v. Northway

• Decision Date: 07 February 1887
• Citation: 7 S.Ct. 580,30 L.Ed. 664,120 U.S. 327
• Parties: UNITED STATES v. NORTHWAY
• Court: U.S. Supreme Court

120 U.S. 327

7 S.Ct. 580

30 L.Ed. 664

UNITED STATES v. NORTHWAY.

February 7, 1887.

Sol. Gen. Jenks, for plaintiff.

A. J. Marvin, J. B. Burrows, and W. W. Boynton, for defendant.

MATTHEWS, J.

On the twenty-third of April, 1885, the grand jury for the Eastern division of the Northern district of Ohio returned an indictment, apparently founded upon section 5209 of the Revised Statutes, against Stephen A. Northway, as president and agent of the Second National Bank of Jefferson, a national banking association. On July 13, 1885, the record was, on motion of the district attorney, remitted to the circuit court. There are 59 counts in the indictment. All of these were quashed except counts 2, 12, 15, 16, 28, 30, and 46, to each of which the defendant interposed a general demurrer. This demurrer came on for hearing before the circuit court, composed of the circuit judge and the district judge for that district, who certify to us that on the hearing they were divided and opposed in opinion on the following questions: '(1) Whethe either of said counts charges defendant with an offense under the laws of the United States; (2) whether the charging of the defendant with committing the acts therein charged against him as 'president and agent' did not vitiate said counts of said indictment; (3) whether, under section 5209 of the Revised Statutes of the United States, it was necessary in the indictment to charge that the moneys and funds alleged to have been embezzled and misapplied, or either, had been previously intrusted to the defendant; (4) whether it is necessary, in charging said defendant with aiding and abetting Sylvester T. Fuller, cashier of said bank, as in counts sixteen, twenty-eight, and forty-six, with the misapplication of the funds of said bank, to charge that the defendant then and there knew that said Fuller was such cashier; (5) whether said second count sufficiently describes and identifies the crime of abstracting the funds of the bank created by the act of congress (6) whether the indictment sufficiently states that the Second National Bank of Jefferson was organized under the national banking act, or to carry on the business of banking under a law of the United States.'

Section 5209 of the Revised Statutes, under which this indictment appears to have been drawn, is as follows:

'Sec. 5209. 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.'

We proceed to dispose of the several questions certified to us in their order.

1. The question whether either of said counts charges said defendant with an offense under the laws of the United States, which is the first one certified, we decline to answer, for the reason that it is too vague and general, within the act of congress authorizing certificates of this character and the repeated decisions of this court.

2. We are of opinion that charging the defendant with committing the acts therein charged against him as 'president and agent' did not vitiate the counts of the indictment in which that description is contained. The only grounds on which the contrary conclusion could be predicated are that the allegation is either too uncertain or is contradictory. The allegation is not uncertain, as it might have been if it had been 'president or agent.' In that case, it might have been urged that, as the offense was charged to have been committed by the defendant either as president or agent, it was uncertain in which of these capacities he was charged; for, although it might be said that a president is ex officio agent of the association, there may be many agents who are not president. Here the description is that he was 'president and agent,' and committed the offense charged in some capacity described by both terms. Neither is the description contradictory, because he may be both president and agent. There is no repugnance in the two characters. Even on the supposition that the statute means to make a distinction between the two offices of president and agent, there is nothing in the natue of either to prevent them both being held at the same time by one person, and the acts charged may, in contemplation of law, have been committed by him in both capacities. A fortiori may this be the case, if every president of such an association is to be held by virtue of his office to be also, within the meaning of the act, an agent of the association. In that case, the use of the words 'and agent' would be mere surplusage in the indictment. Being already in cluded within the meaning of the word 'president,' it does not add anything to the description to introduce the words 'and agent.' This question is therefore answered in the negative.

3. The twelfth count of the indictment charges that the defendant, with proper allegations of time and place, 'was then and there president and agent of a certain national banking association, to-wit, 'The Second National Bank of Jefferson,' theretofore duly organized and established, and then existing and doing business, in the village of Jefferson and county of Ashtabula, in the division and district aforesaid, under the laws of the United States; and the said Stephen A. Northway, as such president and agent, then and there had and received in and into his possession certain of the moneys and funds of said banking association, of the amount and value of twelve thousand dollars, to-wit, * * * then and there being the property of said banking association, * * * and then and there being in the possession of said Stephen A. Northway, as such president and agent aforesaid, he, the said Stephen A. Northway, then and there * * * wrongfully, unlawfully, and with intent to injure and defraud said banking association, did embezzle and convert to his, said Stephen A. Northway's, own use,' etc. The fifteenth count is for wrongfully, unlawfully, and willfully misapplying certain described funds of the bank, with intent to injure the association, and without the knowledge and consent thereof, by paying and causing to be paid to certain persons, out of the moneys, funds, and credits then and there belonging to the property of the association, a large sum of money, in the purchase by him, the said Northway, for the use, benefit, and advantage of himself, of a large number of shares of the capital stock of certain stock companies. It is not alleged in this count that the moneys and funds so alleged to have been misapplied had previously come into the possession of the defendant by virtue of his office and character of president and agent. In respect to the counts for embezzlement, it is quite clear that the allegation is sufficient, as it distinctly alleges that the moneys and funds charged to have been embezzled were at the time in the possession of the defendant as president and agent. This necessarily means that they had come into his possession in his official character, so that he held them in trust for the use and benefit of the association....