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are acts of maladministration of the affairs of the association by its officers. The penalty for such acts is prescribed by sect. 5239, which declares: "If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate any of the provisions of this title (national banks), all the rights, privileges, and franchises of the association shall be thereby forfeited. . . . And in case of such violation, every director who participated in or assented to the same shall be held liable, in his personal and individual capacity, for all damages which the association, its shareholders, or any other person shall have sustained in consequence of such violation."
We are, therefore, of opinion that the wilful misapplication of the moneys and funds of the banking association, which is made an offence by sect. 5209, means something different from the acts of official maladministration referred to in sect. 5239, and it must be a wilful misapplication for the use or benefit of the party charged, or of some person or company other than the association, with intent to injure and defraud the association or some other body corporate or some natural person.
As the counts under consideration, namely, count 77, and the similar counts down to and including count 96, do not show that the wilful misapplication therein alleged was made by the defendant for his own use, benefit, or advantage, but for the use of the association, we are of opinion that they do not allege an offence under sect. 5209, and are, therefore, insufficient and bad.
The counts are, in our opinion, bad also for repugnancy. They aver that the defendant purchased the shares of the association, and held them in trust for the association. This charge, without further averments, is clearly repugnant. It is true that it is possible for an officer of a banking association, with intent to defraud it, to misappropriate its funds in the purchase for its use of its own stock. But the count which avers such an act should also make other averments to show that the application was not merely a use of the money for the benefit of the association forbidden by law, but a criminal misapplication, by which it was possible that the association could be defrauded.
For the reasons assigned, the counts next following, numbered from 97 to 116, inclusive, which are similar to count 77, except that they severally fail to aver that the act therein charged was done with intent to injure and defraud, must be held to be insufficient.
The counts last mentioned, as well as the counts numbered from 56 to 76, inclusive, are bad for the further reason that they fail to aver any intent to injure and defraud mentioned in sect. 5209. The intent to injure and defraud is an essential ingredient to every offence specified in the section, and the failure to aver the intent is a fatal defect in the counts in which it occurs.
We shall next consider count numbered 37 and the counts which are similar to it. These counts simply charge that the defendant, being president of the association, wilfully misapplied its moneys and funds by buying therewith certain shares of its stock, with intent to injure and defraud the association and certain persons to the grand jurors unknown.
The words "wilfully misapplied" are, so far as we know, new in statutes creating offences, and they are not used in describing any offence at common law. They have no settled technical meaning like the word "embezzle" as used in the statutes, or the words "steal, take and carry away," as used at common law. They do not, therefore, of themselves fully and clearly set forth every element of the offence charged. It would not be sufficient simply to aver that the defendant "wilfully misapplied" the funds of the association. This is well settled by the authorities we have already cited. There must be averments to show how the application was made and that it was an unlawful one. These averments the pleader has in these counts attempted to make by charging that the defendant paid out the funds of the association in the purchase of its own stock. But this is not necessarily an unlawful use of the funds of the association. It is not every purchase of its own shares by an association that is forbidden. The very section. (5201) and sentence of the statute which declares that no banking association shall be a purchaser of its own shares, contains the exception "unless such purchase shall be necessary
to prevent loss upon a debt previously contracted in good faith." This exception should have been negatived in these counts. The rule of pleading as laid down by Mr. Chitty is that "when a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. On the contrary, if the excep tions themselves are stated in the enacting clause it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute." 1 Chitty, Crim. Law, 283 b, 284.
Thus, where a statute declared that if one on the Sabbath day "shall exercise any secular labor, business, or employment, except such only as works of necessity and charity, he shall be punished," &c., a negative of the exception was held indispensable. State v. Barker, 18 Vt. 195. See also Commonwealth v. Maxwell, 2 Pick. (Mass.) 139; 1 East, P. C. 167; Spicres v. Parker, 1 T. R. 141; Gill v. Scrivens, 7 id. 27; 1 Bishop's Crim. Pro., sect. 636.
The failure of the counts under consideration to aver that the purchase of the shares of the association was not necessary to prevent loss upon a debt previously contracted in good faith is a fatal defect. These counts merely charge that the defendant wilfully misapplied the funds of the association and then aver a use of the funds, which, from all that appears to the contrary, was a perfectly lawful application of them. The result is that no offence is described in the counts numbered from 37 to 56, inclusive, and that they are, therefore, insufficient and bad. It also follows that counts numbered from 57 to 76, inclusive, which are similar to the series just mentioned, except that they contain no charge of intent to injure and defraud, are also bad.
What we have said disposes of all the questions propounded to us which it is necessary that we should answer.
We answer the first, second, seventh, and ninth questions in the affirmative, and the fifth, sixth, and eighth questions in the negative.
From these answers it appears that all the counts from the thirty-seventh to the one hundred and eighteenth, inclusive, are
insufficient and bad. We therefore decline to answer the third and fourth questions, which relate to the same counts. United States v. Buzzo, 18 Wall. 125.
UNITED STATES v. CURTIS.
An indictment for perjury against an officer of a national bank, for a wilfully false declaration or statement in a report made under sect. 5211 of the Revised Statutes is bad, if, prior to the passage of the act of Feb. 26, 1881, c. 82, his oath verifying the report was taken before a notary public appointed by a State, as such a notary had at that time no authority under a law of the United States to administer the oath.
CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Eastern District of Missouri.
The case is stated in the opinion of the court.
Mr. Assistant Attorney-General Maury for the United States. Mr. Chester H. Krum, contra.
MR. JUSTICE HARLAN delivered the opinion of the court. This case comes before us on a certificate of division as to certain questions of law arising in a criminal prosecution against Edward P. Curtis, based upon sects. 5211 and 5392 of the Revised Statutes of the United States.
The first of those sections provides that every national banking association "shall make to the Comptroller of the Currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors. Each such report shall exhibit in detail, and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the Comptroller within five days after the receipt of a request or requisition therefor from him, and in the same form in which it is made to the
Comptroller shall be published in a newspaper where such association is established," &c.
Sect. 5392 provides that "Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed."
The wilfully false declarations or statements which the defendant is charged to have made are contained in several written reports transmitted to the Comptroller of the Currency by the National Bank of the State of Missouri, in St. Louis, in pursuance of sect. 5211, and to the truth of which declarations or statements Curtis, as cashier of that bank, made oath before a notary public within and for the county of St. Louis in that State. These declarations or statements relate to the condition of the bank as to loans, discounts, checks, cash items, overdrafts, individual deposits subject to checks, surplus fund, currency on deposit, and money due from that association to other national banks. The indictment contains five counts, which, as respects any matter now to be determined, do not substantially differ, except as to the several dates when the alleged oaths were taken. Those dates were July 18 and Oct. 10, 1876, and Jan. 15, Jan. 26, and April 5, 1877.
The controlling question is as to the authority of the notary to administer the oaths, upon the falsity of which the indictment is laid.
It is fundamental in the law of criminal procedure that an oath before one who has no legal authority to administer oaths of a public nature, or before one who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or sub