Dissenting Opinion: Field, J. The second set of counts upon which the prosecution relies are numbers six, seven, eight, nine, twelve, and thirteen of the same indictment. These also allege that the defendant, being a director of the Spring Garden Bank, caused certain checks drawn by him upon the Keystone Bank and the Fourth Street National Bank of Philadelphia for sums greater than he was entitled to draw or obtain from them, to be deposited with the Spring Garden Bank, and placed to his credit on its books, and thereby obtained a false credit and received from that bank, for his own use and benefit, the amount of such checks. But these counts also show that each of such checks was endorsed in this way: "For deposit to the credit of Nelson F. Evans. Received payment through the clearing-house." The purport of this endorsement is that the checks were passed by the bank through the clearing-house and paid there, a not unusual way of collecting checks in our large cities. The same objections that were made to counts five, ten, and eleven can be made to these counts; and also the further objection that there is an inconsistency in the allegation that thereby any false credit was obtained, the checks having endorsed on their face the statement that payment was received on them through the clearing-house. These checks are set forth in the indictment with this endorsement, and there is no allegation that the endorsement was false or was made, or permitted to be made, by the defendant, with any intent to defraud the bank. The very face, therefore, of the checks negatives the charge of crime, and contradicts the idea of loss to the bank. If in answer to this view it be said that it is alleged that the checks were not paid, it must be observed that no averment is made of their presentation for payment or of anything to exclude the idea of negligence on the part of the bank receiving them, or that the money was not lost through the failure of the bank upon which they were drawn. The six counts differ from each other in this, that in some of them the checks are alleged to have been drawn on the Keystone Bank and in others on the Fourth Street National Bank; and in some of the counts the misapplication is charged directly upon the defendant, and in Dissenting Opinion: Field, J. others by his aiding and abetting the president or the cashier. On the several grounds stated a demurrer was interposed to these counts, and in my judgment it was well taken and should have been sustained. The third set of counts upon which the prosecution relies are number fourteen, in the indictment in case 922, and number twenty, in the indictment in case 923. These counts charge the defendant with aiding and abetting the president and cashier of the bank in fraudulently misapplying its funds for the use and benefit of the defendant, by receiving and discounting his note for fifteen thousand dollars, payable in three months, knowing that that note was not secured; and it was not paid at maturity, or at any other time. But these counts. are defective in not alleging that the discounting of the note was in excess of the power of the president or cashier or outside of their regular duties, or that the president or cashier was not the authorized officer of the bank to discount paper. Nor is it averred that the discount was procured by any fraudulent means, or, even, that the defendant was, at the time, insolvent or knew himself to be so. On these grounds a demurrer was interposed, and in my judgment should have been sustained. The only remaining counts upon which the prosecution relies are numbers fourteen, fifteen, and sixteen of the indictment in case 923, and numbers eight, nine, and ten of the indictment in case 922. These counts charge in substance that the defendant aided and abetted the president or the cashier of the bank to fraudulently misapply a large amount of its funds by surrendering to him for his use and benefit certain notes of one Nettleton, discounted by the bank and held as part of its assets, without receiving for the bank the amount thereof, or any part thereof, and that such surrender was fraudulently made to injure the bank. The counts in the indictment in case 923 charge that the defendant aided and abetted the president of the bank in the fraudulent misapplication. The counts in the other indictment charge that the defendant aided and abetted the cashier in such misapplication of the funds. These counts do not show, in either case, any Dissenting Opinion: Field, J. application of the surrendered notes to the use and benefit of the defendant as charged, nor do they contain any averment that the defendant did not receive the notes as agent, for collection, or to obtain their renewal, which would readily suggest themselves as an answer to the alleged unlawful surrender, or that the bank was in any way a loser thereby. The defect in these counts is substantially the same pointed out in considering the eighth count of No. 922, a copy of which is set forth in the opinion of the court. The allegations of fraudulent conduct and motive in the transactions, for which the indictments were found, are repeated with wearisome frequency, yet they are of no avail unless accompanied by a statement of facts from which such fraud must necessarily be inferred. A party is not to be condemned by the multitude or opprobriousness of the adjectives applied to his conduct or motives, unsupported by the facts, or, as said by Lord Chief Justice Holt, "a fact that appears to be innocent cannot be made a crime by adverbs of aggravation." Fraud is a conclusion of law from facts respecting the transactions designated, and if they do not necessarily tend to such conclusion, the allegation falls to the ground, however often repeated or with whatever amount of earnest asseveration. Similar views are announced with great clearness and force in United States v. Watkins, decided by the Circuit Court for this District over sixty years. 3 Cranch C. C. 441. The defendant, who was the Fourth Auditor of the Treasury of the United States, was indicted for devising and intending fraudu lently to obtain for his private use moneys of the United States, by means of letters to and drafts on the navy agent at New York and the navy agent at Boston, and certain requisitions on the Treasury of the United States, also sent by him to them, said letters, drafts, and requisitions being used as false pretences to enable him to obtain the moneys. There were three indictments found against him, and objections were taken to the sufficiency of their allegations of fraud. In considering the objections the court said: "Fraud is an inference of law from certain facts. A fraud, therefore, is not suffi Dissenting Opinion: Field, J. ciently set forth in an indictment, unless all the facts are averred which in law constitute the fraud. Whether an act be done fraudulently or not is a question of law so far as the moral character of the act is involved. To aver that the act is fraudulently done is, therefore, so far as the guilt or the innocence of the act is concerned, to aver a matter of law, and not a matter of fact. An averment that the act was done with intent to commit a fraud is equivalent to an averment that the act was done fraudulently. No epithets, no averment of fraudulent intent, can supply the place of an averment of the fact or facts from which the legal inference of fraud is to be drawn. Starkey, in his late treatise on Criminal Pleadings, says: 'Whether particular circumstances constitute an indictable fraud is a question of law; and, therefore, according to a fundamental rule of description in indictments, such circumstances must be set out in order to show that the facts amount to an indictable offence.' And he quotes Archbold on Criminal Pleadings as follows: An indictment for an offence against the statute must with certainty and precision charge the defendant to have committed acts under the circumstances, and with the intent mentioned in the statute; and if any one of these ingredients in the offence be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict, nor will the conclusion, contra formam statuti, cure it." The charges in the two indictments, by their very number, setting forth over seventy-five distinct offences, after dismissing counts for over one hundred other offences those retained varying from each other by confusing differences were calculated to embarrass and oppress the defendant in his defence. The allegations of fraud in conduct and motive not being supported by any averment of facts from which such fraud is necessarily inferable, the other allegations as to the transactions charged are, upon a reasonable construction, consistent with the innocence of the defendant. And indictments, in my opinion, ought not to be viewed with favor which, by the very multitude of their counts, serve to embarrass and confuse the accused. If an offence cannot be stated in less than one hun Opinion of the Court. dred counts of an indictment, I do not think that public justice will suffer if the indictment be dismissed. My conclusion is that the indictments on all the counts retained are insufficient to hold the defendant, and that the judgment below thereon should be reversed in both cases and judgment entered upon the demurrers in each case for the defendant, and that he be discharged therefrom. EVANS v. UNITED STATES (No. 2). ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 923. Submitted April 17, 18, 1891.- Decided May 14, 1894. Evans v. United States, No. 922, ante, 584, followed. THIS case was argued with No. 922, ante, 584. It was also an indictment against Evans for a wilful misapplication of the funds of the Spring Garden National Bank. The indictment originally contained 152 counts, upon all of which except 57 a nolle pros. was entered. The same proceedings were had as in the former case. The defendant was convicted upon all the counts, and sentenced to imprisonment for two years at and from the expiration of such imprisonment as he might undergo by reason of the sentence in the prior case. He subsequently sued out this writ of error. A reargument was ordered upon the fifth to the eleventh counts inclusive, and upon the fourteenth, fifteenth, sixteenth, and twentieth counts. Mr. Hampton L. Carson, (with whom were Mr. J. Levering Jones and Mr. Rufus E. Shapley on the brief,) for plaintiff in error. Mr. Assistant Attorney General Conrad for defendants in error. MR. JUSTICE BROWN delivered the opinion of the court. |