United States v. Rogers

• Decision Date: 11 October 1915
• Citation: 226 F. 512
• Parties: UNITED STATES v. ROGERS et al.
• Court: U.S. District Court — Northern District of New York

226 F. 512

UNITED STATES v. ROGERS et al.

United States District Court, N.D. New York.

October 11, 1915

Wrisley Brown, Asst. Atty. Gen., and Frank J. Cregg, Asst. U.S Atty., of Syracuse, N.Y., for the United States.

Chas N. Bulger, of Oswego, N.Y., for defendant Murphy.

Costello Burden, Cooney & Walters, of Syracuse, N.Y., for defendants Oppenheim and Rogers.

RAY District Judge.

Section 5209 of the Revised Statutes of the United States, as amended April 6, 1869 (16 Stat. 7, c. 11), and July 8, 1870 (16 Stat. 195, c. 226), now found in Comp. St. 1913, Sec. 9772, reads 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 first count of this indictment in plain and unmistakable language charges a conspiracy between the defendants to commit an offense against the United States; that is, to do acts constituting a crime, and made such by a law of the United States. The conspiracy was that one Brice, acting as teller in the First National Bank of Amsterdam, should abstract its funds, and that Rogers, Oppenheim, and Murphy should aid and abet him in so doing. It is a crime against the United States for the teller in a national bank to abstract its funds, or any of them; and it is a crime against the United States for other persons to aid and abet him in so doing. And all are principals. Penal Code U.S. Sec. 332:

'Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.'

If the conspiracy be that the teller shall do the abstracting, and that the others shall aid and abet, the indictment necessarily and properly charges what each was to do. But the commission of the crime of conspiracy is not complete until one or more of the conspirators does some act or acts in execution or furtherance of the conspiracy. These acts are called 'overt acts,' and may be innocent acts in and of themselves, or criminal acts in their very nature or by virtue of some statute of the United States. The overt acts, or some of them, must be set out plainly and distinctly in the indictment.

If the overt acts are made criminal by some law of the United States, it is no objection to the validity of the indictment that it charges that such overt acts, and each of them, was committed in violation of a section of the criminal laws of the United States, provided each is charged as an overt act. It is unnecessary to allege that the overt act constituted a crime, but it does not invalidate the indictment to charge that one defendant, or two or more, in doing the act or acts in aid and execution of the conspiracy and expressly charged as an overt act, thereby violated another criminal statute of the United States. Such allegation or statement is, of course, unnecessary and surplusage. If the proof fails to establish the conspiracy, the whole count fails, and a defendant cannot be convicted under such conspiracy count for the reason the proof shows he had committed the act charged therein as an overt act, and which in fact constitutes a separate and distinct crime, even if the indictment alleges that such overt act constituted a criminal offense.

The rule prohibiting the charging of two separate and distinct crimes in the same count does not go so far as to prohibit in a conspiracy court the charging of overt acts which are in and of themselves crimes, or prohibit a statement that such overt acts of themselves constituted a crime. If the conspiracy is plainly and distinctly charged, and the overt acts are plainly and distinctly charged as such, it does not invalidate the count to unnecessarily allege that the doing of the overt acts violated a statute of the United States.

It has been held that a conspiracy count in an indictment is not bad for the reason that, in charging overt acts, it appears that the crime which the defendants conspired to commit was actually committed by them. Stanley v. United States, 195 F. 896, 115 C.C.A. 584; McConkey v. United States, 171 F. 829, 96 C.C.A. 501. The conspiracy to commit a crime against the United States and the commission of the offense are separate and distinct crimes.

However, if in doing acts to carry the conspiracy into execution the crime the defendants conspired to commit is actually committed by the conspirators, or one of them, such acts may be charged as overt acts, and the fact that the crime they conspired to commit has been actually perpetrated by them is no defense to the charge of conspiracy. Stanley v. United States, 195 F. 896, 902, 115 C.C.A. 584; McConkey v. United States, 171 F. 829, 96 C.C.A. 501; United States v. Britton, 108 U.S. 199, 204, 2 Sup.Ct. 531, 27 L.Ed. 698.

Other counts of this indictment charge that Brice, the teller of the bank, abstracted the moneys or funds of the bank; other counts that he misapplied the moneys or funds of the bank;...