United States v. Cook (84 U.S. 168)

ON certificate of division of opinion of the judges of the Circuit Court for the Southern District of Ohio; the case being thus:

The 16th section of the act of August 6th, 1846, enacts:

'That all officers and other persons charged. . . with the safe-keeping, transfer, and disbursement of the public moneys. . . are hereby required to keep an accurate entry of each sum received, and of each payment or transfer; and that if any one of said officers. . . shall convert to his own use. . . any portion of the public moneys intrusted to him for safe-keeping, disbursement, or transfer,. . . every such act shall be deemed to be an embezzlement of so much of the said moneys as shall be thus. . . converted,. . . which is hereby declared a felony;. . . and any officer or agent of the United States convicted thereof shall be sentenced to imprisonment for a term of not less than six months, nor more than ten years, and to a fine equal to the amount of the money embezzled.'The 32d section of an act of April 30th, 1790, entitled 'An act for the punishment of certain crimes against the United States,' thus enacts:

'No person shall be prosecuted, tried, or punished for any offence not capital, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, &c. Provided that nothing herein contained shall extend to any person or persons fleeing from justice.'

The 3d section of an act of 1804, entitled 'An act in addition to the act entitled,' &c. (as above), thus further enacts:

'Any person or persons guilty of any crime arising under the revenue laws of the United States. . . may be prosecuted, tried, and punished, provided the indictment. . . be found at any time within five years after committing the offence, any law or provision to the contrary notwithstanding.'

These statutes being in force, one Cook was indicted in the court below at October Term, 1864, for the embezzlement of funds held by him as paymaster in the army of the United States.

The indictment was filed on the 1st of November, 1864; and the first five counts charged acts of embezzlement on the 1st of May, the 6th of July, the 15th of October, the 12th of September, and the 20th of September, in the year 1862.

The defendant demurred to these counts, because it appeared upon the face of them, severally, that the crime charged was committed more than two years before the finding and filing of the indictment, and that the prosecution therefor was, before the finding and filing of the indictment, barred by the statute in such cases made and provided.

Three questions now arose on which the judges were opposed in opinion, and which they accordingly certified for answers by this court:

First. Whether it was competent for the defendant to take exception, by demurrer, to the sufficiency of the first five counts of the indictment for the causes assigned.

Second. Whether the said five counts, or either of them, allege or charge, upon their face, any crime or offence against the defendant for which he is liable in law to be put upon trial, convicted, and punished.

Third. Whether the 32d section of the act of 1790, sometimes called the Crimes Act, applied to the case, and limited the time within which an indictment must be found for such an offence, or whether in regard to the period of limitation, within which an indictment was to be found, the case was governed by the act of 1804, or any other act limiting the prosecution of offences charged in the said five counts.

Messrs. Hunter, Kebler, and Whitman, for the prisoner:

1. The demurrer should be sustained.

In all prosecutions for crime, the indictment must, upon its face, show that the defendant is charged with a crime. He is called to answer to the charge alleged against him, and to nothing else. And if follows if the indictment upon which a party is charged, do not, upon its face, in terms, embody a charge of crime, it is the duty of the court, at any stage of the prosecution, and in any form whatever in which the want of such charge or allegation shall be brought to its notice, to desist from further exercising its jurisdiction over the defendant. This defect of the indictment may be shown, on motion to quash, or on demurrer, or it may be noted by the court, su a sponte. On principle the inability of the court to proceed extends to all classes of defects, whether in the substance of the act alleged as crime, not being such in law; or by reason of exemption of the defendant, by law, from prosecution under the facts alleged against him. It is not the fact, but the allegation-the charge in the indictment, that gives jurisdiction. If, taking the fact as charged, no crime for which the defendant is liable, under the law, to be prosecuted, tried, and punished is charged, does it matter what the reason is?

There is, no doubt, some diversity of opinion on the subject, in criminal practice, in respect to the manner in which this defence of limitation may be taken advantage of, but there surely need not be any delicacy or hesitation about requiring the prosecution, prim a facie, to bring itself by proper allegations within the law, so far as to show a prim a facie case of crime, legally punishable under the law. Numerous cases, including Commonwealth v. Ruffner, and Hatwood v. The State, affirm this view.

2. The limitation of the act of 1790, and not that of the act of 1804, or any other, governs the case.

A paymaster, or an additional paymaster in the army, intrusted with the funds of the government to be disbursed in the time of war, in the payment of the soldiers in the field, is not in any proper sense, or in any recognized acceptation of terms, in their practical or legal sense, a revenue officer.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.