Dimmick v. United States

GILBERT, Circuit Judge,

after stating the case as above, delivered th"* opinion of the court.

It is contended that the indictment does not charge the accused with failure to deposit the money, but merely charges him with failing to deposit it on a specified date, and it is argued that, if the money were deposited on the day before or the day following the specified date, there would be no violation of the law. To answer this it is only necessary to refer to the terms of the statute and the language of the indictment. In the nineteenth count the indictment charges that the money was received by the plaintiff in error on December ii, 1900, and that he still had it in his hands and possession on December 31, 1900, that day being the last day of the quarter; in other words, the indictment charges that the money was not deposited before the 31st, and it then proceeds to allege that the plaintiff in error willfully, knowingly, and feloniously failed to deposit the same on that day. The statute requires, in plain terms, that the person referred to therein who has money of the United States in his possession shall deposit the same when required so to do by the Secretary of the Treasury or the head of any other proper department, and that, if he fail so to do, he shall incur the prescribed penalty. The indictment follows the statute, and charges the commission of the crime which is therein defined.

It is contended that the nineteenth and twentieth counts of the indictment are insufficient, for the reason that the money therein referred to is not described. The rule is that an indictment against a public officer or employé, even for embezzlement of public funds which came into his possession as such officer or employé, need not state what kind of money was embezzled, whether coin, and, if so, whether gold or silver, or bills, or of what denominations, and how many of each. The reason of the rule is too plain to require discussion. No one but the person in the possession of such moneys knows or can know what kind of money it is. United States v. Bornemann (C. C.) 36 Fed. 257 , and cases there cited. It is contended that the decision in Moore v. United States, 160 U. S. 268 , 16 Sup. Ct. 294, 40 L. Ed. 422 , sustains a contrary doctrine, but we do not so understand the ruling in that case. That was a case in which a clerk of the post office was charged with embezzling moneys of the United States. It was objected to the indictment that it contained no direct allegation that the defendant was a clerk in the post office, that it did not describe the money, and that it did not charge that the money came into the possession of the defendant by virtue of his employment. The Supreme Court for those reasons held the indictment insufficient, and said that there was no reason why one who was not such an employé, and who embezzled funds of the government could not properly be charged with the kind and description of money so embezzled. But the court proceeded to say that if the indictment had charged that the defendant was a clerk in the post office, and that he had embezzled the sum stated, and that such sum came into his possession in that capacity, the indictment would have been held sufficient, notwithstanding the general description of the property embezzled as consisting of so many dollars and cents. The indictment in the case under consideration alleges -that *642 the plaintiff in error was a clerk in the United States mint, and that as such clerk he had in his possession the money for the failure to deposit which he was indicted.

It is contended that the verdict operates as an acquittal, for the reason that the plaintiff in error was found not guilty under the fifth and sixth counts of the indictment, which charge him with the crime of embezzlement with reference to the same moneys which are referred to in the nineteenth and twentieth counts. But the fifth and sixth counts are not the same as the nineteenth and twentieth, nor is the offense therein described the same as those for which the plaintiff in error was found guilty. The charge under the nineteenth and twentieth counts is for the failure to deposit when directed to deposit. It is true that by the language of section 5492, Rev. St. [U. S. Comp. St. 1901, p. 3705], it is declared that one who fails to comply with the requirement which directs him to deposit moneys of the United States shall be deemed guilty of embezzlement, but the offense consists, not in the imputed embezzlement of the money, but in the failure to comply with the direction to deposit. The offense may be complete without any actual embezzlement of money. It is committed when it is shown that there is a willful and felonious failure to comply with the specified requirements of the Secretary of the Treasury or the head of the proper department.

The point is made that the court erred in denying the challenges of the plaintiff in error to the jurors M. J. White, B. F. Wellington, and D. B. Crane. All of these jurors, when examined upon their voir dire, testified that they had formed impressions concerning the case, and Wellington stated that he had an opinion, but that it was based entirely upon newspaper accounts. They all testified, however, that they had no such impression or opinion as would prevent them from trying the case solely upon the evidence, and stated that they would be governed entirely by the evidence produced at the trial. There was clearly no error, therefore, in the ruling of the trial court upon the challenges. Williams v. United States, 35 C. C. A. 369 , 93 Fed. 398 .

It is contended that the court erred in overruling the objection of the plaintiff in error to the admission in evidence of section 4 of the regulations of the Treasury Department, which is above referred to in the statement of the case. The statute under which the indictment was brought contemplates that requirements, or, in other words, rules and regulations, may be made by the Secretary of the Treasury, or by the head of any other proper department, or by the governing officers of the Treasury. In Wilkins v. United States, 37 C. C. A. 588 , 96 Fed. 837 , the same point which is here made was made before the Circuit Court of Appeals for the Third Circuit. The court said: “The making of such regulations being, then, an executive act, we next inquire whether, when made, they have the force of law, and whether the courts take judicial notice of their existence. That such is the case the authorities show.” There is no support for the contention of the plaintiff in error in the case of United States v. Eaton, 144 U. S. 677 , 12 Sup. Ct. 764, 36 L. Ed. 591 . In that case Eaton was indicted for al-> leged violation of certain regulations made by the commissioner of internal revenue to enforce the act of Congress of August 2, 1886 ( 24 *643 Stat. 209 , c. 840 [U. S. Comp. St. 1901, p. 2228]). All that was decided was that there was no statutory authority for the particular regulation for the violation of which the defendant was indicted. So, in Morrill v. Jones, 106 U. S. 466 , 1 Sup. Ct. 423, 27 L. Ed. 267 , it was held that the Secretary of the Treasury cannot alter or amend a revenue law so that a violation of such alteration or the amendment thereof may become a criminal offense. But in In re Kollock, 165 U. S. 526 , 17 Sup. Ct. 444, 41 L. Ed. 813 , where the court had under consideration the same statute as in the Eaton Case, it was held that the act authorized the Commissioner of Internal Revenue to make certain regulations which would have the force of law, and that by the violation thereof a criminal offense was committed. And in the Eaton Case the court admitted the same doctrine, in saying: “Regulations prescribed by the President and by heads of departments, under authority granted by Congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in proper sense, the force of law.”

It is said that the court erred in refusing to instruct the jury that if the plaintiff in error did at any time before the last day of the succeeding quarter, which was March 31, 1901, deposit with the assistant treasurer the moneys referred to in the nineteenth and twentieth counts, he should be acquitted. The merit of this contention has already heen discussed. The statute renders criminal the act of willfully failing to deposit money when required to deposit it. The money was received by the plaintiff in error on the nth and 14th days of December. tie was required to deposit it on December 31, 1900, the last day of the current quarter. The instruction was properly refused.

It is contended that the court erred in refusing to instruct the jury that the plaintiff in error must be acquitted if he had no notice or knowledge that he was required to deposit the money on December 31, 1900. The court properly instructed the jury on this branch of the case, and charged them that, in order to hold the plaintiff in error guilty of a violation of the statute, they must find that his failure to deposit was intentional and willful, and in that connection the court read to the jury the section of the statute under which the indictment was found.

It is contended that there was no evidence in the case to show that the defendant had notice or knowledge of the regulation which was admitted in evidence. But there was evidence to show that the money which he was charged to have received under the nineteenth and twentieth counts was received by him, respectively, on the 1 ith and the 14th days of December, 1900, and that he falsely entered the same in the records of the mint as having been received by him on the 3d day of the following January. The superintendent of the mint testified to a conversation which he had with the plaintiff in error on February 5th, in which the latter admitted that he had used these sums of money, and in substance admitted that he knew of the regulation. The plaintiff in error was an experienced clerk in the mint. He was cashier from September 1, 1898, to September 1, 1899, and from that time on was chief clerk. The money which, according to the nineteenth and twentieth counts, he failed to deposit, was money received by him as *644 the proceeds of the sale of by-products of the mint and old materials. It was the business of the chief clerk to collect all such bills and deposit the money with the subtreasury. The book containing the regulation as to deposits was in his room for his guidance. All these facts, together with the other circumstances proven in the evidence, were sufficient to sustain the conclusion of the jury that the plaintiff in error had actual knowledge of the regulation and intended willfully to disobey the same. In this connection the point is made that a general regulation is not sufficient to constitute a requirement under the language of the statute. The trial court ruled adversely to this contention, and we find no error in its ruling. It was proper and fitting to regulate the movements of the employés of the mint by printed and published directions for their guidance. A requirement thus published is as truly a demand upon the employé’as would have been a personal notice or demand, and it possesses a superior stability and certainty.

We find no merit in any of the objections which the plaintiff in error makes to the charge which was given to the jury, or the refusal of the court to charge as requested. The court properly instructed the jury on the subject of the good character of the accused, and in regard to reasonable doubt. He informed them that the accused could not be convicted on his own statements without other evidence of the commission of a crime.

It is urged that there was error in that the special counsel for the prosecution, in his argument to the jury, commented upon the fact that the plaintiff in error had failed to testify in his own behalf. What counsel said was this: “In refutation of what counsel says, you will bear me out that no one has contradicted Mr. Leach in his statement of the facts with reference to the conversation with Mr. Dimmick.” This remark, unexplained, .might well have been regarded by the jury as a comment upon the failure of the accused to testify, for it did not appear that any third person overheard the conversation between the accused and Mr. Leach. But when objection was made, and the attention of counsel for the prosecution was directed to his remark, he denied that he had referred therein to the plaintiff in error or to his failure to take the stand, and upon the suggestion of the court withdrew his remark, and stated that it was not in his mind to comment upon or refer to the fact that the plaintiff in error had or had not been a witness; whereupon the following colloquy occurred: “Mr. Collins: Then I understand the remark is withdrawn? Mr. Denson: Yes.” It would thus appear that the remark was withdrawn, and that the counsel for plaintiff in error was satisfied with the withdrawal, and that he took no further exception. Under all the circumstances, we think no error was committed which could affect the substantial rights of the plaintiff in error.

It is contended that there was no evidence sufficient to sustain the verdict. There was evidence that the plaintiff in error received the money in December; that he knew of the regulation; that he failed to deposit .the money on the last day of the quarter in which it was received ; that he made false entries of the date of its reception, so that it might appear to have been received by him in the following quarter; that he did not deposit it until March 31, 1901; and that on-February *645 5, 1901, he admitted to the superintendent that he had applied the money to his own use. These leading facts, together with other details of the testimony, are sufficient to sustain the verdict of the jury.

We find no error in the record for which the judgment should be reversed. The judgment is affirmed.