United States v. Britton

Section 5209 of the Revised Statutes of the United States is as follows:

'Every president, director, cashier, teller, clerk, or agent of any' national banking '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, or assings 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 the 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.'

An indictment based on this section was, on January 20, 1879, found against defendant, James H. Britton, in the district court of the United States for the eastern district of Missouri. It contained 119 counts. The first count charged as follows:

'That James H. Britton, late of said district, on the thirtieth day of June. A. D. 1876, at said district, being then and there president of a certain national banking association then and there known and designated as the 'National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of congress entitled 'An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June 3, A. D. 1864, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in said district, under the said act of congress and the acts amendatory thereof, did make in a certain book then and there belonging to and in use by the said association in transacting its said banking business, and then and there designated and known as 'Profit and Loss, No. 6,' a certain entry to the credit of a certain account known as profit and loss, which said entry was then and there in the words and figures following; that is to say:

"Richard L. Dickson:

"182 days' int., 8 per cent., 132,673.49, to July 1, '76, . . . 5,365.88'

-and which said entry, so far as aforesaid made in said book, then and there purported to show, and did, in substance and effect, indicate and declare, that the sum of $5,365.88 was then and there received by said association on account of interest then and there due and payable to said association by one Richard L. Dickson.

'And the jurors aforesaid, on their oaths aforesaid, do further present that the said entry so made as aforesaid was then and there false in this: that the said sum of $5,365.88 was not then and there received by said association on account of interest then and there due and payable to said association from the said Richard L. Dickson, as he, the said James H. Britton, then and there well knew; and that the said entry, so made as aforesaid, was then and there false in this: that the said sum of $5,365.88 was not then and there received by said association upon any account from any source, as he, the said James H. Britton, then and there well knew; and that the said false entry was then and there made as aforesaid with the intent then and there on the part of him, the said James H. Britton, to deceive any agent who might be thereafter appointed by the comptroller of the currency to examine the affairs of said association, contrary to the form of the statute of the United States in such case made and provided, and against their peace and dignity.'

The 34 counts next following, numbered from 2 to 35, inclusive, charged, in the same language, the making of similar false entries in the same book with the same intent.

The thirty-sixth count was in all respects similar to the preceding 35 counts, except that it omitted the averment that the false entry was made with the intent 'to deceive any agent who might be thereafter appointed by the comptroller of the currency to examine the affairs of said association,' and in lieu thereof alleged it to be with intent 'to injure and defraud the said association and certain persons to said jurors unknown.'

The thirty-seventh count charged as follows:

'That the said James H. Britton, late of said district, on the second day of April, in the year of our Lord one thousand eight hundred and seventy-seven, at said district, being then and there president of a certain national banking association then and there known and designated as the 'National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of congress entitled 'An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June third, in the year of our Lord one thousand eight hundred and sixty-four, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in said district, under the said act of congress and the acts amendatory thereof, did pay to a certain person, to the jurors aforesaid unknown, a large sum of money, to-wit, twenty-four hundred dollars, out of the moneys and funds then and there belonging to and the property of said association, in the purchase by him, the said James H. Britton, from said unknown person, of a large number, to-wit, forty certain shares of the capital stock of said association, which said shares of stock were then and there represented upon the books of said association to be the property of one Francis Fisher.

'And the jurors aforesaid, on their oaths aforesaid, do further present that the said James H. Britton, presidents as aforesaid, did then and there, by means of the payment aforesaid, in manner and form aforesaid, willfully misapply the said sum of twenty-four hundred dollars of the moneys and funds as aforesaid of said association, with intent then and there, on the part of him, the said James H. Britton, to injure and defraud the said association and certain persons, to the jurors aforesaid unknown, contrary to the form of the statute of the United States in such case made and provided, and against their peace and dignity.'

The next following 19 counts, numbered from 38 to 56, inclusive, are similar to count 37, and need not be set out.

The next succeeding counts, numbered from 57 to 76, inclusive, but excepting the seventy-fourth, are similar to count 37, except that they omit the averment that the misapplication was made with intent 'to injure and defraud the said association and certain persons to the jurors aforesaid unknown.' These counts aver no intent whatever. The seventy-fourth count is similar to the thirty-seventh.

The next 20 counts, numbered from 77 to 96, inclusive, are in all respects similar to count 37, except that they contain the following additional averment, forming the conclusion of the first clause of the account, namely, 'and which said shares of stock, so purchased as aforesaid, were then and there held by him, the said James H. Britton, in trust for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debt theretofore contracted with said association in good faith.'

The next 20 counts, numbered from 97 to 116, are all similar to count 96, except that they omit the averment that the misapplication of the funds of the association was with the intent 'to injure and defraud the said association and certain persons to the jurors aforesaid unknown.' These counts charge no intent.

The count numbered 117 was similar to count 36, and count numbered 118 was similar to count 1.

As no division of opinion respecting count numbered 119 is certified, it is unnecessary to notice that count.

The defendant demurred to the indictment. By order of the district court the indictment was, on May 16, 1879, remitted and transferred to the next regular term of the United States circuit court for the eastern district of Missouri, at which term the cause was heard upon the demurrer. Upon such hearing the following questions arose, upon which the judges of the circuit court were divided and opposed in opinion, namely:

(1) Whether it was necessary, in the counts of said indictment charging a fraudulent purchase by the defendant of certain shares of the capital stock of said association, to state for whose use the purchase was made, and whether, where it is charged in the indictment that the purchase of stock was made for the use of the bank, such averment vitiates the indictment.

(2) Whether it was necessary in the said counts to allege that the purchase of stock was not made in order to prevent loss on some previously-contracted debt.

(3) Whether it was necessary in the said counts to set forth the means by which the defendant, as president of said bank, possessed himself of the moneys of the bank, which he employed in purchasing said stock.

(4) Whether it was necessary to charge in the said counts that the defendant, as president of the bank, was in possession of funds of the bank, in addition to charging misapplication of said funds.

(5) Whether the counts of said indictment charging the fraudulent purchase by the defendant, as president of said banking association, of certain shares of stock 'in trust, for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debts theretofore contracted with said association in good faith,' alleged with sufficient certainty an offense under said section 5209 of the Revised Statutes of the United States.

(6) Whether count numbered 116 of the said indictment charges with sufficient certainty an offense under said section 5209 of the Revised Statutes of the United States.

(7) Whether it is necessary in an indictment under section 5209 of the Revised Statutes, charging willful misapplication of the funds of a banking association, to allege that such misapplication was with intent to defraud.

(8) Whether the purchase of stock in violation of section 5201 of the Revised Statutes of the United States, if made with intent to defraud, and by one or more of the officers of the bank named in said section 5209 of the Revised Statutes, is a crime punishable under the latter section.

(9) Whether those counts which cover alleged false entries sufficiently state an offense under section 5209.

These questions, together with the pleadings upon which they arose, were, on motion of counsel for the United States, certified by the judges of the circuit court to this court for its opinion thereon.

Asst. Atty. Gen. Maury, for the United States.

''J. B. Henderson, Geo. H. Shields, and Chester H. Krum'', for Britton.

Woods, J.