By the statute on which the defendant was indicted and convicted, '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,' 'shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.' Rev. St. § 5209.
By the settled rules of criminal pleadings, and by the previous decisions of this court, the words 'willfully misapplies,' having no settled technical meaning (such as the word 'embezzle' has in the statutes, or the words 'steal, take, and carry away' have at common law), do not, of themselves, fully and clearly set forth every element necessary to constitute the offense intended to be punished; but they must be supplemented by further averments, showing how the misapplication was made, and that it was an unlawful one. Without such averments, there is no sufficient description of the exact offense with which the defendant is charged, so as to enable him to defend himself against it, or to plead an acquittal or conviction in bar of a future prosecution for the same cause. U.S. v. Britton, 107 U.S. 655, 661, 669, 2 Sup. Ct. 512; U.S. v. Northway, 120 U.S. 327, 332, 334, 7 Sup. Ct. 580; Evans v. U.S., 153 U.S. 584, 587, 588, 14 Sup. Ct. 934.
The general allegation, at the beginning of the count in question, that the defendant, on January 1, 1891, and at divers times between that date and July 8, 1893, being president, director, and agent of a certain national banking association, did, as such president, director, and agent, 'willfully misapply forty thousand four hundred and twenty-two dollars and seventy-nine cents. of the moneys, funds, and credits then and there belonging to and the property of said association, in the manner following,' is rightly admitted to be insufficient, unless the acts afterwards alleged amount to a willful misapplication of funds of the association, within the meaning of the statute.
It is first alleged that the defendant, without the knowledge or consent of the association, or of its board of directors, and knowing himself and one John W. Batchelor to be insolvent and worthless, procured of the latter divers promissory notes payable to the association, some of them indorsed by the defendant, but all without other security. So far, it is not shown in what manner, or for what consideration, the defendant procured these notes, or that he paid for them any sum of money whatever, least of all that he procured them with moneys, funds, or credits of the association.
The indictment then proceeds: 'With which said notes, by and through the device and pretense of discounting the same and making loans thereon, and with the proceeds of said loans so made thereon and thereby obtained by him, the said Harry F. Batchelor, he then and there knowing the said promissory notes to be inadequate security for the moneys so obtained, he did from time to time, during the period aforesaid, take up and satisfy the individual indebtedness of him, the said Harry F. Batchelor, to the said association.'
Here is no direct or distinct allegation who made the discounts of or the loans upon the notes. The allegation of 'the device and pretense of discounting the same and making loans thereon' must either mean that the discounts, as well as the loans, were made upon all the notes,-which would make the allegation inconsistent with itself, inasmuch as, when a bank discounts a note, the note becomes its absolute property, but when a bank makes a loan of money upon a note it holds the note as security only for the payment of the loan,-or else it must mean that some of the notes were discounted, and that loans were made upon the other notes, and upon that interpretation, does not show what part of the notes was discounted, and upon what part loans were made. Moreover, it does not allege that any sums whatever were paid by the association, or by any one else, for the discounts. As to the loans, it does allege that, 'with the proceeds of said loans so made thereon and thereby obtained by him,' the defendant, knowing those notes to be inadequate security 'for the moneys so obtained,' did from time to time 'take up and satisfy the individual indebtedness of' the defendant to the association; but it does not state, either directly or by reference, what indebtedness of the defendant is here intended. 'The proceeds of said loans' is an ambiguous and uncertain description, signifying what was obtained by the lender for the loans, quite as aptly as the very money lent to the borrower; and the further words, 'and thereby obtained by him,' may have as full force by restricting them to the last antecedent, the 'said loans so made thereon,' as by carrying them back to the words, 'the proceeds of' said loans. While it is further alleged that the defendant knew those notes to be inadequate security 'for the moneys so obtained,' there is no statement whatever of the amount of said moneys, nor even, as has been seen, any definite and certain allegation that any money had been obtained at all. To call upon the accused, or upon the court, to pick out and put together, from such a confused and ambiguous sentence, enough to make out a sufficient charge of unlawfully misapplying funds of the association, would be inconsistent with the settled rules of criminal pleading.
The rest of the indictment is yet more defective. The next allegation is that 'thereafter in turn, by substituting the notes of' the defendant to the association, sometimes indorsed by John W. Batchelor, or by some third person named, the defendant, knowing these notes to be inadequate security for the sums they represented, and they having with them no other security, took up and canceled and pretended to pay to the association the indebtedness created to it by John W. Batchelor as aforesaid. This amounts only to the substitution of worthless notes for other notes equally worthless, without, so for as the indictment shows, the payment of any money or other consideration whatever.
The remaining specific allegation is that the defendant 'did from time to time, by the fraudulent device and means aforesaid, as well as by passing differences between the face of said various notes and the indebtedness aforesaid, which they were from time to time to satisfy, to the credit of him, the said Harry F. Batchelor, upon the accounts of said association, gradually increase the amount of the actual indebtedness of him, the said Harry F. Batchelor, to the said association.' As admitted by the learned attorney for the United States, in answer to a question from the court, the clause about 'passing differences' has no legal meaning, and the rest of the allegation does not show any use of funds of the association.
Such being the nature and effect of the specific allegations in the indictment as to the manner in which the defendant acted, there are no sums clearly and sufficiently specified, to which can be referred the concluding averment, 'all of which said sums were misapplied willfully, and in the manner aforesaid, out of the moneys, funds, and credits of said association,' and were converted to the defendant's use, benefit, and advantage, with the intention to injure and defraud the association and its depositors and other persons and corporations doing besiness with it. Judgment reversed.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse