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ber six." To hold this insufficient would carry refinement in criminal pleading to an impracticable extent. The counts point out to the defendant and the court, with certainty and precision, the book used by the association in which the false entry was made, and this is all that is necessary under the statute.
It is next objected that the false entries as set out in the counts do not of themselves bave any significance, and are unintelligible without explanation. This is mere assumption. Conceding that the entries may be unintelligible to persons not skilled as accountants, it does not follow that they are so to the agent appointed by the Comptroller, who, it is alleged, was the person whom the entries were intended to deceive. But, if the entries needed explanation, it was perfectly competent for the pleader to explain them by innuendo. Rex v. Griepe, 1 Ld. Raym. 256; Rex v. Aylett, 1 T. R. 63; Rex v. Taylor, 1 Camp. 404; Reg. v. Virrier, 12 Ad. & E. 317; Mix v. Woodward, 12 Conn. 262; Van Vechten v. Hopkins, 5 Johns. (N. Y.) 211. This he has done by averring what the entries purported to show, and did, in substance, indicate and declare. explained the entries, he avers them to be false. To hold this insufficient would be to decide that the making of false entries, in the books of a banking association, in the usual method of book-keeping, and which were intelligible to all accountants, could not be punished under the statute because not intelligible to persons generally, or to persons not skilled in book-keeping
It is next objected that the counts under consideration are argumentative and repugnant, because they do not allege that interest was due to the association from the individuals named in the alleged false entries.
This objection is not well founded. Whether interest was due or not is quite immaterial. The charge is that a false entry was made on the books of the association which purported that a certain sum was, on a day named, received from a person named, on account of interest then and there due from him to the association; that the said sum was not then and there received on account of interest dure, and was not received on any account from any sources whatever. The falsity of the entry
does not consist in the fact that there was no interest due from the person named, but in the fact that money, which the entries declared had been received from him on account of interest due, had not been received from him on that or any other account. It was, therefore, entirely unnecessary to aver that no such interest was due, and the want of such averment does not render the counts argumentative or repugnant.
It is further objected to these ccunts that a false entry to the credit of profit and loss alone could not deceive a bank examiner, and, therefore, that the counts are repugnant. This is also mere assumption. But if the false entry is calculated to deceive, the making of it in the books of the association, with intent to deceive, is all that is necessary to bring the act within the meaning of the statute. It is perfectly apparent that any false entry in any account-book of a bank used in transacting its banking business is calculated to deceive. The fact that its falsity may be exposed by an examination of other books of account, does not render it any the less a false entry made with intent to deceive. The circumstance that the attempt to deceive by making a false entry was not an adroit and skilful one, does not relieve the act of its criminal character.
It is further contended that the counts under consideration are insufficient, because it is not alleged that at the time the false entries were made an agent had been appointed to examine the affairs of the association. This objection is based on the theory that the statute was designed to punish only those officers of a banking association who made false entries in its books with intent to deceive examiners appointed before the falee entries were made. We do not think the statute will bear this construction.
The appointment of agents to examine the affairs of national banking associations is provided for by sect. 5240 of the Revised Statutes, which declares: “ The Comptroller of the Currency, with the approval of the Secretary of the Treasury, shall as often as shall be deemed neiessary or proper, appoint a suitable person or persons to make an examination of the affairs of every banking association, who shall have power to make a thorough examination into all the affairs of the association."
appears from this section that the appointment of these agents is not permanent, but occasional and temporary, and that the appointments are made as often as shall be deemed necessary and proper. It is, therefore, apparent that the statute which punishes false entries, made with intent to deceive such agents, refers to any entries made with that intent whether before or after the appointment of the agent.
There is nothing impossible in the averment that false entries have been made with intent to deceive an agent to be appointed after they are made. The agents are often purposely appointed without notice to the association. The fact that the Comptroller of the Currency has information that the officers of an association are making false entries in its books may be the occasion for appointing an agent to examine its affairs. To hold that the officers of the association would only be punishable for false entries made after an agent had been appointed would rob the law of a large part of its salutary effect. Its purpose is clear, to punish all false entries in the books of the bank, no matter when made, if made with intent to defraud the association or deceive the examiner. We think that in respect to the point under consideration the indictment is sufficient.
We are of opinion that none of the objections raised to the first thirty-five counts are well taken. They are refined and unsubstantial, and not sustained by the rules of criminal pleading in cases of misdemeanor, or by the fair construction of the statute on which the indictment is based. These counts embody the language of the statute ; they charge every element of the offence created by the statute with sufficient certainty, and give the defendant clear notice of the charge he is called on to defend. They are, therefore, sufficient. United States v. Cook, 17 Wall. 168, and cases already cited.
The thirty-sixth count differs from the first thirty-five in charging the intent with which the offence was committed. The intent is charged to be to injure and defraud the said association, and certain persons to the grand jurors unknown.” This follows the language of the statute.
Clearly it is possible to injure and defraud the association or its stockholders or other persons, by false entries in its account
of profit and loss. The charge is not repugnant or impossible. We are of opinion, therefore, that the first thirty-six counts of the indictment, being those which charge false entries in the books of the association, sufficiently state an offence under sect. 5209. It follows that count 117, which is in all respects similar to count 1, and count 118, which is in all respects similar to count 36, are good and sufficient.
We shall next consider count numbered 77 and the similar counts. That portion of the section on which they are based makes it an offence for the president or other officer of a banking association to embezzle, abstract, or wilfully misapply the moneys of the association with intent to injure or defraud the association or any company or person.
The seventy-seventh count of the indictment charged that the defendant, being president of the association, paid to a certain person unknown the sum of $2,400 of the moneys of the association in the purchase of forty shares of its capital stock, which stock, so purchased, was held by the defendant in trust for the use of the association, and the same was not purchased to prevent loss on any debt theretofore contracted with the association in good faith, and that so the defendant did wilfully misapply the moneys of the association with intent to injure and defraud the association and certains persons to the grand jurors unknown.
The question is propounded to us, whether this count sufficiently describes an offence under sect. 5209 of the Revised Statutes.
The purchase of its own stock by the association, except to secure a debt due it, is forbidden by law. Is a purchase for the use of a banking association of its own stock by its president, when not necessary to secure a debt due the association, a wilful misapplication of its funds, punishable by sect. 5209?
We think the wilful misapplication made an offence by this statute means a misapplication for the use, benefit, or gain of the party charged, or of some company or person other than the association. Therefore, to constitute the offence of wilful misi.pplication, there must be a conversion to his own use or the use of some one else of the moneys and funds of the asso
ciation by the party charged. This essential element of the offence is not averred in the counts under consideration, but is negatived by the averment that the shares purchased by the defendant were held by him in trust for the use of the association, and there is no averment of a conversion by the defendant to his own use or the use of
of the funds used in the purchase of the shares. The counts, therefore, charge maladministration of the affairs of the bank, rather than criminal misapplication of its funds.
If we hold these counts to be good, then every official act of any officer, clerk, or agent of a banking association, by which its funds are applied in a way not authorized by law, would be punishable under sect. 5209.
For instance, sect. 5200 of the Revised Statutes declares that “the total liabilities to any association of any person,
... for money borrowedy . . . shall at no time exceed one-tenth part of the capital stock of the association actually paid in.” Sect. 5201 provides that no association shall make any loan or discount on the security of the shares of its own capital stock, unless such security shall be necessary to prevent loss on a previously contracted debt. If the counts under consideration are sustained, then every president, director, casliier, teller, clerk, or agent of a banking association who has any part in lending the money of the association contrary to the provisions of these sections, is guilty of a criminal misapplication of its funds.
So, by sect. 5137 of the Revised Statutes, the purposes for which a banking association may purchase and hold real estate are limited and specifically pointed out. If the directors of a banking association should authorize the purchase of a piece of real estate for its use, but not for purposes authorized by the statute (even though with intent to injure some corporate body or natural person), it could hardly be claimed that the directors who made the order, and the other officers or agents of the association who (with a like intent) had any hand in making the purchase or in paying out the money of the bank therefor, would be liable to indictment and imprisonment under sect. 5209.
The acts charged by the counts under consideration are precisely of the same character as those just mentioned. They