United States v. Forrest

The persons liable to be prosecuted under the sixteenth section of the Act of Congress of the 3d of March, 1825, c. 65, [4 Stat. at Large, 118,] are persons employed as president, cashier, clerk, or servant, in the Bank of the United States, or in any office of discount and deposit established by the directors of the said bank in any State or Territory of the United States.

The offences under that section are, 1st. Feloniously to steal, take, and carry away any money, goods, bond, bill, bank-note, or other note, check, draft, treasury note, or other valuable security or effects belonging to the said bank, or deposited therein; 2d. Fraudulently to embezzle, secrete, or make way with any money, goods, &c., (as above stated, but omitting the word “ check,”) “ which he shall have received, or which shall come to his possession or custody, by virtue of such employment.”

None of the counts states that the defendant was employed *60either as president, cashier, clerk, or servant in the Bank of the United States, or in any of its offices of discount and deposit. The averment in each of them is, “ being then a bookkeeper in the said Office of Discount and Deposit.” The word “ employed” is not in any one of the counts. It is a very important word in the sixteenth section of the act; for it is the only word which connects the person with the bank as its officer, and designates his appointment and trust. A person may be a bookkeeper in an office of discount and deposit, and yet not be an officer appointed by the bank or by the office. The intention of this section of the act is clearly to punish frauds in the officers of the bank duly appointed and employed by the bank. Perhaps it might be sufficiently certain to a common intent to say that a bookkeeper, in an office of discount and deposit, means a clerk or servant employed in an office of discount and deposit. But certainty to a common intent is not sufficient in an indictment. It must be certainty to a certain intent. 8 Co. 57 a; Rutland’s case, Co. Lit. 303 a; Long’s case, 5 Co. 21 a; Colthirst v. Beinshin, Plowden, 26-36; The King v. Stevens and Agnew, 5 East, 257; Rex v. Lyme Regis, Doug. 158; 1 Chitty, Pleadings, 235, 240 ; 2 Hawk. P. C. c. 25, § 60; The King v. Airey, 2 East, 33, 34, 35; Com. Dig. Pleader, C. 24; 1 Chitty, Plead. 255, 308, 513, 514, 516, 517, 518.

Every thing material must be positively alleged. Nothing material can be taken by intendment. Non constat by the indictment that a bookkeeper “ in ” an office of discount and deposit is a clerk or servant employed in such office.

None of the counts avers that the things' secreted or embezzled came to his hands or possession by virtue of his employment. Here the word employment means his authority from the bank. The thing embezzled must have come to his possession or custody by virtue of his authority from the bank, or he cannot be convicted under this statute. To say that it came to his hands while he acted as bookkeeper, as in the second and fifth counts, without showing that he so acted under an employment by the bank; or to say that it came to his hands in virtue of his office as bookkeeper, as in the fourth and sixth counts; or that it came to his hands as bookkeeper, as in the seventh and eighth counts, without showing that he was employed by the bank, that is, was authorized by the bank to act as bookkeeper, is not a sufficient allegation that it came “ to his possession or custody by virtue of such employment.” For these reasons we are of opinion that all the counts are bad.

There is another objection which goes to the whole indictment ; but as we think the others sufficient and this doubtful, *61we shall give no opinion upon it. We mean the objection, that the office of discount and deposit at Washington is not established in any State or Territory of the United States.

There are other objections also to particular counts.

As to those which charge the defendant with embezzlement of money, it is objected that the money is not averred to be the property of the Bank of the United States; and although it is not necessary to constitute the offence of embezzlement under the second branch of the 16th section, that the things embezzled should be the property of the Bank of the United States, yet it is said that it must be averred to be the property of some person.

This objection we do not think sufficient.

It is also objected that those counts do not aver that the defendant fraudulently embezzled, &c.

This objection we take to be good; for it is a part of the description of the offence that it should be done fraudulently; and no allegation that it was done feloniously can supply the place of the word fraudulently; for it was not feloniously unless it were fraudulently done. 2 Hawk. B. 2, c. 25, § 110.

This objection applies to the 2d, 5th, and 6th counts.

To the 4th, 7th, and 8th counts, it is objected that it is not averred, that the check was a valuable security, or a draft; and a check, as such, is not within the words of the section upon which this indictment purports to be framed. A check, ex vi termini, is not, ex necessitate, a draft or a valuable security, especially after it has been paid by the party on whom it was drawn, and cancelled. The offence must be charged in the words of the act.

I. think this also'a valid objection.

The majority of the judges, however, upon this last point, are of a different opinion.

Thruston, J., argued against the opinion of the Court, upon the other points also, but concluded that he would not dissent.

Judgment for the defendant on the demurrer.