Claassen v. United States

An indictment • on Rev. Stat. § 5209, is sufficient, which avers that the defendant was president of a national banking association; that by virtue of his office he received and took into his possession certain bonds (described), the property of the association; and that, with intent to injure and defraud the association, he embezzled the bonds and converted them to his own use. In a criminal case, a general judgment upon an indictment containing several counts, and a verdict of guilty on each count, cannot be reversed on error if any count is good and is sufficient to support the judgment. Upon writ of error, no error in law can be reviewed which does not appear upon the record, or by bill of exceptions made part of the record.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES EOR THE SOUTHERN DISTRICT OF NEW YORK. Tots was an indictment on section 5209 of the Revised Statutes (which is copied in the margin1) containing forty-four counts, to all of which (except four afterwards abandoned by the prosecution) the defendant demurred; and his demurrer being overruled, hé pleaded not guilty to all the counts. At the trial the district attorney elected to go to the. jury upon eleven of the counts; and on May 28,1890, the jury found the • defendant guilty of the offences charged in five of those counts, and acquitted him upon the other six. The first of the five 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, 1861, 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, wilfully.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, wilfully 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 twenty-second-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 Janies A. Simmons the sum of sixty thousand dollars, although, as he, the said Peter J. Claassen, 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 ered.it 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, thereafter, to wit, on the twenty-third 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 3, 1891, c. 517, § 5, and -the joint resolution of the same date, No. 17, (26 Stat. 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 rejection 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 after-wards, 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 said Supreme Court before the justices thereof now here may proceed to examine as well the record 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.