Indictment of Peter J. Claassen, president of the Sixth National Bank of New York, for embezzling the securities thereof. Verdict of guilty, and judgment thereon. Defendant brings error. Affirmed.
The facts of the case fully appear in the following statement by Mr. Justice GRAY: This was an indictment on section 5209 of the Revised Statutes, (which is copied in the margin ) containing 44 counts, to all of which (except 4 afterwards abandoned by the prosecution) the defendant demurred; and, his demurrer being overruled, he pleaded not guilty to all the counts. At the trial the district attorney elected to go to the jury upon 11 of the counts; and on May 28, 1890, the jury found the defendant guilty of the offenses charged in 5 of those counts, and acquitted him upon the other 6. The first of the 5 counts upon which the defendant was convicted alleged that on January 23, 1890, he, being the president of a certain national banking association known as the 'Sixth National Bank of the city of New York,' organized under the act of congress of June 3, 1864, c. 106, and acting and carrying on a banking business in the city of New York, 'did, by virtue of his said office and employment, and while he was so employed and acting as such president as aforesaid, receive and take into his possession certain funds and credits, to-wit,' certain bonds and obligations of railroad and other corporations, particularly described, of the value in all of $672,000, 'then and there being the property of the said association, and which he held for and in the name and on account of the said association, and did then and there willfully and unlawfully, and with intent to injure and defraud the said association, embezzle the said bonds and written obligations and convert them to his own use, against the peace of the United States and their dignity, and contrary to the form of the statute of the said United States in such case made and provided.' Another of these counts averred that, on January 22, 1890, the defendant, being president as aforesaid, 'did, willfully and unlawfully, and with intent to injure and defraud the said association, misapply and convert to the use, benefit, and advantage of one James A. Simmons certain moneys and funds then and there being the property of the said association, to-wit, the sum of sixty thousand dollars, in the manner and by the means following,-that is to say, he, the said Peter J. Claassen, being then and there such president as aforesaid, did, without the knowledge and consent of said association or its board of directors, procure the making by one Andrew E. Colson, who was then and there the cashier of said association, of a certain writing and check, commonly known and called a 'cashier's check,' bearing date the 22d day of January, in the year of our Lord one thousand eight hundred and ninety, which said check did then and there authorize and direct the said association to pay to the order of the said James A. Simmons the sum of sixty thousand dollars, although, as he, the said Peter J. Claasen, then and there well knew, the said sum of sixty thousand dollars was not then and there on deposit with the said association to the credit of him, the said James A. Simmons, and was not then and there due and owing from the said association to him, the said James A. Simmons, and the repayment thereof to the said association was not then and there in any way secured, and the said James A. Simmons had no manner of right and title to the same, and he, the said Peter J Claassen, then and there unlawfully devising and intending that he, the said James A. Simmons, should appropriate and convert to his own use the said sum of sixty thousand dollars from and out of the moneys and funds of the said association, which said sum of money was, upon and pursuant to the direction and authorization contained in the said check, there-after, to-wit, on the 23d day of January, in the year of our Lord one thousand eight hundred and ninety, paid by the said association from and out of the moneys and funds of the said association to the said James A. Simmons, and was then and there appropriated and converted to the use of the said James A. Simmons, against the peace of the United States and their dignity, and contrary to the form of the statute of the said United States in such case made and provided." The other three counts were precisely like this, except in the names of the persons to whose use and benefit the funds were converted. A motion for a new trial and in arrest of judgment was heard upon a case settled by the presiding judge, and denied on December 24, 1890. On March 18, 1891, the defendant was sentenced to imprisonment for a term of six years in a penitentiary. On March 21, 1891, he sued out a writ of error from this court under the act of March 2, 1891, c. 517, § 5, and the joint resolution of the same date, No. 17, (26 St. 827, 1115) and filed in the circuit court an assignment of errors, setting forth specifically, and in the manner of a bill of exceptions, errors in the admission and rejections of evidence, and in the judge's instructions to the jury, but assigned no error in the indictment or the sentence. To this assignment of errors the United States pleaded in nullo est erratum, as follows: "And afterwards, to-wit, on the second Monday of April in said term, the said defendant in error, by Edward Mitchell, their attorney, comes here into court, and says that there is no error either in the record or proceedings aforesaid or in the giving of the judgment aforesaid. And he prays that the sid supreme court, before the justices thereof now here, may proceed to examine as well the reocrd and proceedings aforesaid as the matters aforesaid above assigned for error, and that the judgment aforesaid, in form aforesaid given, may be in all things affirmed," etc. The plaintiff in error, in his brief filed in this court, specified the insufficiency of each of the counts on which he was convicted, as well as the matters stated in the assignment of errors filed in the circuit court.
Hector M. Hitchings and Saml. Shellabarger, for plaintiff in error.
[Argument of Counsel from pages 144-146 intentionally omitted]
Sol. Gen. Taft, for the United States.
Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.
- '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 on 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.'