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to each, or rather as to 44 thereof. To the which were typewritten, and noted thereon, charge of the court actually delivered to the by inclosing the same in a parenthesis mark Jury, the defendants reserved 26 exceptions. with pencil, the parts of such instructions so A controversy exists as to whether one of the given by the court to which exceptions were 26 exceptions was properly taken. The facts, taken, the parts thus marked being respec. as stated in the bill of exceptions, are as fol tively numbered; that at 9 o'clock that night lows:

the defendants' counsel returned to the court "After the court had delivered Its charge room, and handed the instructions which had to the jury, and before it retired, the court been so marked and numbered by them to said: 'If it is the desire of counsel for de the judge, in open court, saying that the parts fendant to reserve any exceptions to the marked in parentheses and numbered were charges given and refused, the practice in those to which the defendants excepted, and this court requires that that shall be done be to which they reserved their bill, under the fore the jury retires.'

understanding previously had; that immedi“Mr. Miller: 'It is, of course, if your honorately thereafter the jury, which had not please, the desire on behalf of defendants to reached a conclusion, was brought into court, reserve exceptions to the refusal of such in and informed by the judge that he would be structions as were requested and refused, within call until 11 o'clock to receive a verand to parts of the instruction given. With dict, and if they did not agree by that time out having a little time to examine these in they might seal their verdict, and bring it instructions, it is impossible for us now to des to court on Monday morning, it being then ignate the particular parts. We would like Saturday evening. to have time to look at them for that pur On May 28th the defendants, through their pose.'

counsel, wrote out in full their exceptions to “The Court: 'Wbat length of time would the various parts of the charge, as marked you desire ?

and numbered, and presented them to the “Mr. Miller: 'I do not know, if your honor court, which declined to sign them because of please, how long it would take. It has taken the twenty-second exception, which it consid. an hour to read them.'

ered not properly taken, under the understand. “Mr. Duncan: 'They can be made, when ing between court and counsel above stated. made, as of this time, with permission of the However, the court signed the bill of excepcourt.'

tions, writing therein a narrative of the facts, “The Court: 'Except so far as any mere

and predicating its objection to the twentyverbal changes are concerned, which, if the second exception on the ground that the matcourt's attention was drawn to, it would at ter covered by it was merely verbal, and at once correct, I have no objection to that the time the parties were given the right to method of procedure.'

take their bill the court did not include any *"Mr. Miller: 'Of course, anything that is mere verbal error, which would have been Sormal, of that character, that won't go to the corrected it attention had been called to it in substance of the matter, we should not ex proper time. The language contained in the pect to insist on. But, as your honor can see charge covered by the disputed exception is it, it is impossible for us, from hearing the as follows: instructions read for an hour, to select the "I do not wish to be understood as meanparts.'

ing that the intent to injure, deceive, or de"The Court: 'There are the instructions you fraud is conclusively established by the simpropose (indicating), and these instructions I ple proof of the doing of the prohibited act do not care to have mislaid or lost (indicat

which results in injury. What I do mean is ing).'

this: That when the prohibited acts are “Mr. Miller: 'No, sir; of course not. For knowingly and intentionally done, and their that matter, every syllable of them has been natural and legitimate consequence is to taken down by two stenographers bere,-all | produce injury to the bank, or to benefit the of your instructions, as you read them,-so wrongdoer, the intent to injure, deceive, or there cannot be any possibility of any trouble defraud is thereby sufficiently established to about them. We take them and maken cast on the accused the burden of showing "The Court: 'Where is the bailiff ?'

that their purpose was lawful, and their acts “Mr. Taylor: 'You may take these forms of legitimate." the verdict and the indictment.'

On the 28th day of May the jury returned “ 'Gentlemen of the jury, you may retire a verdict against the plaintiffs in error of with your bailiff.'”

guilty as charged on all the counts of the inThe bill of exceptions then states that at dictment. After an ineffectual motion for a the time this colloquy took place the assist new trial, which restated the various grounds ant attorney for the prosecution was present of objection raised to the admissibility of ev. in the court room, heard the conversation, idence under the indictment, and which had and assented to the arrangement thus made. also been urged in the charges which had

It further states that a few minutes after been requested and refused, the defendants 3 in the afternoon the jury retired to con moved in arrest. After argument upon this sider their verdict; that the defendants' coun motion the court sustained the same as to the sel took the instructions given by the court, 17th, 18th, 19th, 20th, 21st, 220, 230, 24th,

25th, 26th, 27th, 28th, 29th, 30th, 31st, 320, , etc. The argument is that no one but an 33d, 34th, 35th, and 36th counts.

officer or an agent can be punished as an This reduced the indictment-First, to those aider and abettor, and hence that every percounts which were specific as to date, amount, son who aids and abets, not being an officer, and method; second, to those which, while shall go unwhipped of justice. To adopt the specific in amount and date, were not specific construction contended for would destroy as to method; third, to four counts, Nos. 13, the letter and violate the spirit of the law; 14, 15, and 16, which were not specific as to for the letter says, “every person who aids date or method, leaving in addition all the and abets,” and the proposition is that we counts charging false entries in the books of should make it say “every officer or agent the bank. The errors assigned here are 78 who aids and abets.” The spirit and purin number, and cover all the objections which pose of the statute are to punish the presiwere made to the rulings of the court below dent, cashier, oflicer, or agent, etc. and likeduring the trial, and the exceptions based on wise to punish every person who aids and charges requested and refused, as well as abets. The assertion that one who is not charges given.

an officer, or who bears no official relation

to the bank, cannot, in the nature of things, W. H. H. Miller, Ferdinand Winter, and

aid or abet an official of the bank in the John B. Elam, for plaintiffs in error. Asst.

misapplication of its funds, is an argument Atty. Gen. Conrad, for the United States.

which, if sound, should be addressed to the

legislative, and not the judicial, department. Mr. Justice WHITE, after making a state We cannot destroy the law on the theory ment of the case, delivered the opinion of that the acts which it forbids cannot be comthe court.

mitted. In other words, the construction Many of the exceptions taken during the which we are asked to give does not deal trial, and the requests to charge which were with the meaning of the statute, but simply refused, as well as most of the exceptions involves the claim that it is impossible to to the charge as given, relate to the counts prove the commission of the offense defined of the indictment which were quashed on by the law. The question whether the proof the motion in arrest. All these questions shows the commission of an offense is one of are therefore eliminated. We shall bence fact, and not of law. The citation made only consider the matters which are perti from U. S. V. Northway, 120 U. S. 333, 7 nent to the remaining counts, and shall ex Sup. Ct. 580, is not apposite. True, we there amine first the objections made to the in said, “All the acts charged against Fuller dictment generally, based upon the conten could only be committed by him by virtue of, tion that all the counts fail to charge an his official relation to the bank, and the acts offense; second, the exceptions reserved to charged against the defendant likewise could. rulings of the court during the trial, the only be committed by him in his official caeffect of which is to assail the verdict and pacity.” But in that case the indictment itjudgment without reference to the validity self charged Northway, as president and of the indictment. In making this examina- agent, with aiding and abetting Fuller, the tion, we shall concentrate the errors com cashier of the bank, and the language quoted plained of in proper order, thus obviating referred to the matter under consideration, repetition; for the matters to be considered and hence it was incidentally stated that the are all reiterated by way of objection to the proof and averment must correspond. evidence, of exception to the refusal to Nor is the contention sound that the parcharge as requested, and of complaints of ticular act by which the aiding and abetting the charges which the court actually gave. was consummated must be specifically set

It is contended that no offense is stated out. The general rule upon this subject is against the aiders and a bettors, because in stated in U. S. v. Simmonds, 96 U. S. 360, as none of the counts is it asserted that they follows: “Nor was it necessary, as argued were officers of the bank, or occupied any by counsel for the accused, to set forth the specific relation to the bank which made special means employed to effect the alleged aiding and abetting possible. The language unlawful procurement. It is laid down as a of the statute fully answers this contention. general rule that in an indictment for solicitIt provides that “every president, director, ing or inciting to the commission of a crime, cashier, teller, clerk, or agent of any as or for aiding or assisting in the commission sociation, who," etc., and adds, after defin- of it, it is not necessary to state the paring the acts which are made misdemeanors, ticulars of the incitement or solicitation, or “that every person who with like intent aids of the aid or assistance. 2 Whart. Cr. Law, and abets," etc. The phrase "every person" § 1281; U. S. v. Gooding, 12 Wheat. 460." Is manifestly broader than the enumeration The form books give the indictment substanmade in the first portion of the statute. In tially as it appears here. Bish. Forms, $ other words, the unambiguous letter of the 114, p. 52. Nothing in Evans v. U. S., 153 law is that every president, director, agent, U. S. 608, 14 Sup. Ci 939, conflicts with etc., who commits the designated offenses, these views. In that case the question was shall suffer the penalties provided, and that whether the eighth count stated misapplicaevery person who aids or abets such officer, tion of the funds, and not whether the par.

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ticular acts by which the aiding and abet fense of willful misapplication, there must ting were done were necessary to be set out be a conversion to the party's own use, or in the indictment. On the contrary, the to the use of some one else, of the funds of counts there held good charged the aiding the association. This essential element of and abetting in the very language found in the offense is not averred in the indictment the indictinent in hand,—"and the said "under consideration, but is negatived by the * Evans did then and there knowingly and un averment that the shares purchased by the lawfully aid and abet the said cashier in defendant were held by him in trust for the such willful misapplication with intent in use of the association; and there is no averhim, the said Evans, to injure and defraud," ment of a conversion by the defendant, for etc.

bis own use, or the use of any other perso), 2. It is said that all the counts in the in of the funds used in purchasing the shares. dictment are bad because it is not charged The counts, therefore, charge maladministra. that the aiders and a bettors knew that tion of the affairs of the bank rather than Haughey was president of the bank at the criminal misapplication of the funds." So, time it is a verred the acts were committed. in Northway's Case, we said, “It is of the The argument is this: The statute says essence of the crime of misapplication that that every person who with like intent aids there should be conversion of the funds to or abets any officer, etc. Therefore, the the use of the defendant, or of some other fact that the aider or abettor knew that the person than the association." The various person who misapplied the funds was an counts of the indictment here are all subofficer, etc., must be specifically charged. stantially alike in stating the conversion. Without considering the legal correctness of We take the second as an example. That this proposition, it may be observed that charges that Haughey, being president of the It has no application to this cause. Each Indianapolis Bank, did then and there, by and every count here specifically avers that virtue of his office as president of said bank. “the said Theodore P. Haughey, then and unlawfully, feloniously, and willfully misthere being president of the bank,” and apply the moneys, funds, and credits of the “then and there, by virtue of his said office, bank, with intent to convert the same to the as such president as aforesaid," "misapplied use of the Indianapolis Cabinet Company, the funds"; and having thus fully averred by then and there causing said sum to be the relation of Haughey to the bank, and palu out of the moneys, funds, and credits the commission of the acts complained of, of the bank, upon a check drawn upon the in his official capacity, with intent to de bank by the Indianapolis Cabinet Company, fraud, etc., the counts go on to charge that which check was then and there cashed and the plaintiffs in error did unlawfully, will paid out of the funds and credit of the fully, feloniously, knowingly, and with in bank, which sum, and no part thereof, was tent to defraud, aid, and abet the "said

the said Indianapolis Cabinet Company entiHaughey as aforesaid.” The words “as tled to withdraw from the bank, because aforesaid" clearly relate to Haughey in the said company had no funds in the bank, and capacity in which it is stated that he com that the said company was then and there mitted the offense charged against him in insolvent, which Haughey then and there the body of the indictment. Without enter well knew, whereby said sum became lost ing into any nice question of grammar, or to the bank. This clearly states the misap undertaking to discuss whether the word plication and actual conversion of the mon"said,” before Haughey's name, and the ey by the methods described; that is to say, words “as aforesaid,” which follow it, are by paying it out of the funds of the bank adverbial, we think the plain and unmis to a designated person, when that person takable statement of the indictment, as a was not entitled to take the funds, and that, whole, is that the acts charged against owing to the insolvency of such person, the Haughey were done by him as president of money was lost to the bank. The fact that the bank, and that the aiding and abetting the count charges the intent to convert monwere also knowingly done, by assisting him ey to the use of the Indianapolis Cabinet in the official capacity, in which alone it is Company does not obliterate the clear statecharged that he misapplied the funds.

ment of the actual conversion. In this re-n 3. It is further contended that all the gard the count is clearer and stronger than counts of the indictment, except the first, are that held sufficient in Evans v. U. S., supra. insufficient because they fail to aver the ac 4. The following request was made and retual conversion of the sum misapplied to fused: the use of any particular person.

"Each of the forty-six counts of this indict. osition is based on the cases of U. S. ". ment, except the 1st, the 40th, the 41st, and Britton, 107 U. S. 666, 2 Sup. Ct. 512, and the 43d, alleges that certain facts therein reU. S. v. Worth way, supra. In the Britton ferred to are unknown to the grand jury. Case we said "that the willful misapplication | Thus, the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, whicb was made an offense by this statute | 10th, 11th, and 12th counts each aver a mismeans a misapplication for the use, benefit, application of the funds of said bank by or gain of the party charged, or some other said Haughey with intent to convert the person; and therefore, to constitute the of same to the use of the Indianapolis Cabinet


This prop

Company, and to other persons to the grand with crime are innocent until they are prov. jury unknown.


averment that the en, by competent evidence, to be guilty. To names of these persons were unknown to the benefit of this presumption the defendants the grand jurors is a material averment, and are all entitled, and this presumption stands is necessary to be proven by the government, as their sufficient protection, unless it has in order to make out its case in each of said been removed by evidence proving their guilt counts, because in each of said counts the beyond a reasonable doubt." charge is of a misapplication of a single, Although the court refused to give this definite, fixed sum, with an intent to convert | charge, it yet instructed the jury as follows: the same to the use, not merely of the cabi “Before you can find any one of the defendnet company, but of other persons. If, as ants guilty, you must be satisfied of his guilt, a matter of fact, no evidence has been placed as charged in some of the counts of the inbefore you showing, or tending to show, that dictment, beyond a reasonable doubt." And the names of such persons were unknown to again: "You may find the defendant's guilty the grand jury, then, as to these counts, the on all the counts of the indictment, if you government's case has failed."

are satisfied that, beyond a reasonable doubt, In connection with this ruling, the bill of the evidence justifies it." And finally, statexceptions states that there was no evidence ing the matter more fully, it said: "To juswhatever on the subject offered by either tify you in returning a verdict of "Guilty,' side, and nothing to indicate that there was the evidence must be of such a character as knowledge in the grand jurors of the mat to satisfy your judgment to the exclusion of ter which the indictment declared to be to every reasonable doubt. If, therefore, you, them unknown. The instruction was right can reconcile the evidence with any reasonly refused. It presupposes that where there able hypothesis consistent*with the defend. is an averment that a person or matter is ants' innocence, it is your duty to do so, and unknown to a grand jury, and no evidence in that case find the defendants not guilty. upon tho subject of such knowledge is offer And if, after weighing all the proofs, and ed by either side, acquittal must follow, looking only to the proofs, you impartially while the true rule is that, where nothing and honestly entertain the belief that the deappears to the contrary, the verity of the fendants may be innocent of the offenses averment of want of knowledge in the grand charged against them, they are entitled to jury is presumed. Thus, it was said in Com. the benefit of that doubt, and you should ac v. Thornton, 14 Gray, 43: “The fact that the quit them. It is not meant by this that the name of the person was in fact known must proof should establish their guilt to an abso appear from the evidence in the case. It is lute certainty, but merely that you should immaterial whether it so appears from the not convict unless, from all the evidence, you evidence offered by the government, or that believe the defendants are guilty beyond a offered by the defendant. But, there being reasonable doubt. Speculative notions, or no evidence to the contrary, the objection possibilities resting upon mere conjecture, that the party was not unknown does not not arising or deducible froin the proof, or arise.” And previously, in Com. v. Sherman, the want of it, should not be confounded 3 Allen, 248, the court observed: “It is als with a reasonable doubt. A doubt suggestways open to the defendant to move the ed by the ingenuity of counsel, or by your judge before whom the trial is had to order own ingenuity, not legitimately warranted by the prosecuting attorney to give a more par- the evidence, or the want of it, or one born ticular description, in the nature of a specific of a merciful inclination to permit the de cation or bill of particulars, of the acts on fendants to escape the penalty of the law, or which he intends to rely, and to suspend the one prompted by sympathy for them or those trial until this can be done; and such an or connected witb them, is not what is meant der will be made whenever it appears to be by a reasonable doubt. A ‘reasonable doubt,' necessary to enable the defendant to meet

as that term is employed in the administrathe charge against him, or to avoid danger tion of the criminal law, is an honest, subof injustice. Com. v. Giles, 1 Gray, 469; stantial misgiving, generated by the proof, or King v. Curwood, 3 Adol. & El. 815; Rosc. the want of it. It is such a state of the Cr. Ev. (6th Ed.) 178, 179, 420.” It is to be proof as fails to convince your judgment and observed that none of the counts as to which conscience, and satisfy your reason of the the prosecution was called upon to specify guilt of the accused. If the whole evidence, remain, all having been eliminated by the ac when carefully examined, weighed, comtion of the court on the motion in arrest. pared, and considered, produces in your

This concludes the examination of all the minds a settled conviction or belief of the de general objections to the indictment which fendants' guilt,-such an abiding conviction we deem it necessary to consider, and brings as you would be willing to act upon in the us to the exceptions taken to the refusals to most weighty and important affairs of your charge, as well as those reserved to the own life,---you may be said to be free from charges actually given.

any reasonable doubt, and should find a verThe forty-fourth charge asked and refused dict in accordance with that conviction or be. was as follows:

lief." “The law presumes that persons charged The fact, then, is that, while the court re

fused to instruct as to the presumption of, that the failure of the accusation was inerinnocence, it instructed fully on the subject itable, could not restrain himself, and exof reasonable doubt.

claimed, “Oh, illustrious Caesar! if it is sufThe principle that there is a presumption ficient to deny, what hereafter will become of innocence in favor of the accused is the of the guilty ?” to which Julian replied, “If undoubted law, axiomatic and elementary, it suffices to accuse, what will become of the and its enforcement lies at the foundation of innocent?” Rerum Gestarum, lib. 18, c. 1. the administration of our criminal law. The rule thus found in the Roman law was, • It is stated as unquestioned in the text along with many other fundamental and hu. books, and has been referred to as a matter mane maxims of that system, preserved for of course in the decisions of this court and in mankind by the canon law. Decretum Grathe courts of the several states. See 1 Tayl. | tiani de Presumptionibus, L. 2, T. 23, c. 14, Ev. C. 5, $$ 126, 127; Wills, Circ. Ev. c. 5, A. D. 1198; Corpus Juris Canonici Hispani $ 91; Best, Pres. pt. 2, c. 1, $$ 63, 64; Id. C. et Indici, R. P. Murillo Velarde, Tom. 1, L. 2, 3, 88 31-58; Greenl. Ev. pt. 5, $ 29, etc.; 11 n. 140. Exactly when this presumption was, Cr. Law Mag. 3; Whart. Ev. § 1244; 2 Phil. in precise words, stated to be a part of the Ev. (Cowen & Hill's Notes) p. 289; Lilien common law, is involved in doubt. The writthal's Tobacco v. U. S., 97 U. S. 237; Hopt er of an able article in the North American v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; Com. | Review (January, 1851), tracing the genesis v. Webster, 5 Cush. 320; State v. Bartlett, of the principle, says that no express men43 N. H. 224; Alexander v. People, 96 Ill. 96; | tion of the presumption of innocence can be People v. Fairchild. 48 Mich. 31, 11 N. W. found in the books of the common law earlier 773; People v. Millard, 53 Mich. 63, 18 N. W. than the date of McNally's Evidence (1802). 562; Com. v. Whittaker, 131 Mass. 224; Whether this statement is correct is a matter Blake v. State, 3 Tex. App. 581; Wharton v. of no moment, for there can be no doubt that, State, 73 Ala. 366; State v. Tibbetts, 35 Me. if the principle had not found formal expres81; Moorer v. State, 44 Ala. 15.

sion in the common-law writers at an earlier Greenleaf traces this presumption to Deu- date, yet the practice which flowed from it teronomy, and quotes Mascardius De Proba- has existed in the common law from the tionibus to show that it was substantially earliest time. embodied in the laws of Sparta and Athens. Fortescue says: "Who, then, in England, On Evidence, pt. 5, § 29, note. Whether can be put to death unjustly for any crime? Greenleaf is correct or not in this view, there since he is allowed so many pleas and privcan be no question that the Roman law was ileges in favor of life. None but his neighpervaded with the results of this maxim of bors, men of honest and good repute, against criminal administration, as the following ex. whom he can bave no probable cause of extracts show:

ception, can find the person accused guilty. "Let all accusers understand that they are Indeed, one would much rather that twenty not to prefer charges unless they can be prov- guilty persons should escape punishment of en by proper witnesses or by conclusive doc- death than that one innocent person should uments, or by circumstantial evidence which be condemned and suffer capitally." De amounts to indubitable proof and is clearer Laudibus Legum Angliae (Amos' translation, than day." Code, L. 4, tit. 20, 1, 1. 25. Cambridge, 1825).

“The noble (divus) Trajan wrote to Julius • Lord Hale (1678) says: "In some cases preFrontonus that no man should be condemned sumptive evidence goes far to prove a person on a criminal charge in his absence, because guilty, though there be no express proof it was better to let the crime of a guilty per of the fact to be committed by him; but then son go unpunished than to condemn the in it must be very warily pressed, for it is bet. nocent." Dig. L. 48, tit. 19, l. 5.

ter five guilty persons should escape unpun"In all case of doubt the most merciful ished than one innocent person should die." construction of facts should be preferred." | 2 Hale, P. C. 290. He further observes: Dig. L. 50, tit. 17, I. 56.

“And thus the reasons stand on both sides; “In criminal cases the milder construction and, though these seem to be stronger than shall always be preserved.” Dig. L. 50, tit. the former, yet in a case of this moment it is 17, l. 155, $ 2.

safest to hold that in practice, which hath “In cases of doubt it is no less just than it least doubt and danger,-'Quod dubitas, ne is safe to adopt the milder construction." feceris.'” 1 Hale, P. C. 24. Dig. L. 50, tit. 17, 1. 192, & 1.

Blackstone (1753-1765) maintains that "the Ammianus Marcellinus relates an


law holds that it is better that ten guilty dote of the Emperor Julian which illustrates persons escape than that one innocent sufthe enforcement of this principle in the Ro fer.” 2 BL Comm. C. 27, marg. p. 358, ad man law. Numerius, the governor of Nar- finem. bonensis, was on trial before the emperor, How fully the presumption of innocence had and, contrary to the usage in criminal cases, been evolved as a principle and applied at the trial was public. Numerius contented common law is shown in McKinley's Case himself with denying his guilt, and there was (1817) 33 State Tr. 275, 506, where Lord Gilnot sufficient proof against him. His adver lies says: “It is impossible to look at it (a sary, Delphidius, "a passionate man," seeing treasonable oath which it was alleged that

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