UNITED STATES V. CADWALLADER.
677
with me with aosolute secrecy under the name E. :May Dunkirk, Albany, Oregon:' To facilitate the correspondence, he inclosed stamps, so the decoy letter states, and the fact was admitted on the argument. This "correspondence" between the accused in Portland and the fictitious person at Albany, which was to employ postage stamps, must necessarily have been through the mails. The accused must have so understood the decoy letter. The government agent was therefore not engaged in detecting' crime, but in procuring its commission. The supreme court of Michigan, in Saunders v. People, 38 Mich. 218, denounce the practice of decoying or conniving with persons suspected of criminal designs for the purpose of arresting them iri the commission of the offense. Marston, J., in a concurring opinion, says: "Some courts have gone a great way in giving encouragement to detectives in some very questionable methods adopted by them to discover the guilt of criminals; but they have not yet gone so far, and 1 trust never will, as to lend aid or encouragement to officers who may, under a mistaken sense of duty, encourage and assist parues to commit crime in order that they may arrest and have them punished for so doing."
Campbell, O. J., said the encouragement to criminals to induce them to commit crimes in order to get up a prosecution against them is scandalous and reprehensible. In the case on trial the government agent thought it necessary not only to solicit the commission of the crime charged, but to make an urgent appeal to the accused to such end: "Can you help a friend who is in the family way, about two months gone?" To this the accused answered, "If you are in that way, the medicine is no good." And at a personal interview subsequently had with the accused the government official, if one engaged in such service can be so called, was informed that he could not have the preventive remedy unless he would give assurances that he was a married man. These facts tend to show that the accused was reluctant to act in the particular transaction, and the fact adds to the reprehensible character of the conduct of the prosecuting witness. There is no case which goes so far as to allow a conviction upon such a state of facts. The case is within the rule adopted in U. S. v. Whittier, above referred to. The :finding is that the defendant is not guilty. UNITED STATES v. CADWALLADER.
(District Court, W. D. Wisconsin.
December 7. 1893.)
NATIONAL BANKS-OFFENSES OF OFFICERS. ETc.-INDICTMENT.
Embezzlement, abstraction, and willful misapplication of the moneys, funds, etG., of a national bank, as described in Rev. St. § 5209, constitute three separate crimes or offenses, Which, under Id. § 1024, may be joined in one indictment, but must be stated in separate counts.
At Law. Indictment of A. A. Cadwallader for violating the national banking laws. Demurrer to certain counts for duplicity. Demurrers sustained.
FEDERAL REPORTER,
vol. 59.
Salllu:el A. Harperand,J. J. FI'uit, for the United states. Spooner,Sanborn & Kerr, for defendant. BUNN, The defendant was indicted under section 5209, Rev. St. U. S.,/which reads'as follows: "EvefY\ preSident, director;' Cashier, teller, Clerk or agent of any association who embezzles,"abstracts; or:wllfully misapplies any of the moneys, funds, or credits (,)f Jneass0c1atiQn;. Qr who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such autJlOrity, Issues or puts forth anycertiflcate of deposit, draws any order or billo'f exChange, makes any acceptance, assigns any note, bond, draft, bill of exchahge;mortgage, judgment or decree; or who makes any false entry in any or statement of the association, wIth intent, in either case, .to injure or de1,'raud tbe.a$Soclation or any other company, body politic or corporate, or any individual person, or to deceive any ()fficer of the association, or any agent appointed tQ examine the affairs of any such' association; and every. person who with lik'e intent aids or abets any officer, clerk or agent in anyviolat!on ()f this sectlQn, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten."
The indictment contaiJis ten counts, in each of which, except the first, the defendant is charged with having at various dates, and on and between various times specified, as president and one of the directors of the Superior National Bank at Superior, Wis., embezzled, abstracted, and willfully misapplied the moneys and fund,s of said bank. In each of said counts are also set out the partiemar facts conl;ltituting such embezzlement, abstraction, and willful misapplication of the moneys of the bank. The defendant has demurred to each of these counts for duplicity, on the ground that they, and each of them, charge three distinct offenses under the statute. The question is whether the counts are liable to this objection. And this, as a question of criminal pleading, independent of statute, would seem to turn upon a consideration of whether the. statute describes only one offense or different and distinct offenses. If the statute describes only different stages, degrees, or phases of one and the same offense, these degrees or phases may undoubtedly all. be set forth and charged in the same count of the indictment; but if the statute defines different and distinct offenses, each re9uiring different proof to establish it, there can be little doubt that they should not be joined in the same count, though they mayall, or any of them, be united in different counts in the same indictment. There has been in this country and in England a very considerable relaxation of the common-law rule that there can be but a single offense charged in one indictment; and the line of departure and distinction has been between offenses of a high grade, such as were denominated "felonies" at common law, requiring either capital punishment or imprisonment for a term of years in the penitentiary, with or without hard labor, and those of a lower grade, denominated "misdemeanors," the punishment of which is by fine or imprisonment in the common jail, or both. In the former class of cases there has never been much letting down from the strictness of the common-law rule that only one substantive offense could be charged in the same indictment, though differ-
679
ently set out in several counts, to meet the evidence. It has been considered greatly prejudicial to the defense of a prisoner to be put upon trial at the same time for two distinct crimes of a high grade, such as murder, manslaughter, rape, arson, burglary, grand larceny or embezzlement. These were all felonies at common law, and I think there is no example or precedent by which a defendant has been or might be put upon trial for more than one crime in the same indictment. It would prejudice the prisoner in his defense, and lead to much confusion, if not injustice. Such has been the general rule of criminal pleading by the common law, both in England and in thi!'j country. The statutes, however, in England, and presumably in most of the states, have relaxed the rule, by all9wing in misdemeanors and purely statutory offenses, two or more distinct offenses to be united by different counts in the same indictment, and putting the defendant upon trial for all at once. I do not know of any case, however, where the prosecution has been allowed to unite two or more distinct offenses in the same count of an indictment; and such a thing, if allowed, must necessarily lead to much confusion and embarrassment. How is the defendant to plead, and how are the jury to find their verdict? There is no precedent or practice for allowing a prisoner to plead guilty to one portion of a count and not guilty to another, or for the jury to find the defendant guilty under one part and not guilty under another part. It is seen that by the section of the statute above quoted congress has said that the person offending in any or either of the ways prescribed shall be deemed guilty of a misdemeanor, but probably this fact should determine nothing in regard to the degree of strictness which the law would require in pleading, as the punishment prescribed-not less than five nor more than ten years' imprisonment-makes the offense an infamous one under the decisions of the United States supreme court, within the meaning of that provision of the constitution which says that no person shall be held to ans,",:er for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935; Mackin v. U. S., 117 U. S. 348, 6 Sup. Ct. 777; Parkinson v. U. S., 121 U. S. 281, 7 Sup. Ct. 896; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111; In re Claasen, 140 U. S. 205, 11 Sup. Ct. 735. In one of these cases-that of Mackin v. U. S.-the usual distinction in this country made between felonies and misdemeanors, before referred to, is recognized by the United States supreme court in the following language, found on pages 352 and 353, 117 U. S., and on page 779; 6 Sup. Ct.: "In most of the states and territories, by constitution 01' statute, all crimes, or at least statutory crimes, not capital, are classed as felonies or as misdemeanors, accordingly as they are, or are not, pUnishable by imprisonment in the state's prison or penitentiary." So that any offenses which are punishable by imprisonment for a term of years in the penitentiary, by these decisions are infamous crimes, and, according to the common classification, felonies, though our laws do not in general recognize the usual common-law
5.9. characterization of a felony as being a crime, a conviction for forfeiture of goods. While we have abolished ,which forfeitures of goods as a punishment of crimes, we retain the prinof personal liberty, which may be quite as severe ciple and qegrading. ppon a careful eonsideration of the statute, I am satisfied that it creates and defines several distinct offenses, probably not less than nine. It is true the punishment for each offense is the same, but that circumstance is not controlling in determining whether OIHlottheoffenses are one and the same, or distinct and several. If the evidence to establish one is of necessity entirely different from t4at which would be sufficient to establish another,-if the line of prosecution and defense would be wholly different,-then the o1fenses the. same, but are distinct. And that this would be so seems quite clear. The proof to establish a case of willful misapplication of funds, or an abstraction of the moneys or funds of the .bank, would be inadequate to make a case of embezzlement. The proofs to make out embezzlement of the moneys of the bank would not suffice to make a case of issuing', without authority, notes or bills of exchange or certificates of deposit, or of making false entries in the books of the bank. Embezzlement was a felony, at common law, of .the same grade as larceny. 4 Bl. Comm. That was when a servant fraudulently converted to his own lise his master's goods, of the value of 40 shillings, not having the jtctualPOssession, but only the care and oversight, of the goods. :By St. 21 Hen. VIII. c. 7, the offense was extended to all cases of fraudulent conversion by a servant of the master's goods of the value of 40 shillings. This statute was in force at the time of the settleml;lnt of our colonies, and so presumably became a part of the COmmon law of this country, It was repealed in the time of George IV., and ot;b.er statutes providing for banishment for 14 years or confinement for 3 years substituted. Under the law of congress in question, this offense of embezzlement is joined in the same section with 1Tarious other distinct acts performed by the agent or officer of a banking association, which were not before indictable as crimes; and, though the statute denominates them all as misdemeanors, in the judgment of the court that is not at all decisive of the question as to the degree of strictness to be observed in criminal pleading. ':['he statute calls them "misdemeanors," while one of the offenses described was clearly a felony at common law, punishable by forfeiture of goods and imprisonment, while to the commission of each a severe punishment is prescribed, which, by the decisions of the supreme court rendered since the passage of the act, are held to make them infamous crimes, which, according to the classification of crimes usually adopted in this country, and recognized by the supreme court, are also felonies, as involving imprisonment in the penitentiary for a term of years. The punishment of this offense defined by the statute is much more severe than .that prescribed for manslaughter, which is imprisonment not exceeding three years, and a fine not exceeding $1,000. ., ;,)lut, aside ,from allyq1,1cstion of how, it .might pc adjudged at
es1
common law, I cannot doubt that the question is practically and definitely settled by section 1024, Rev. St. U. S., which provides that"When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the 'same class of crimes or offenses, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts."
The third clause of this provision, in the judgment of the court, precisely defines and covers this case; that is to say: "Where there are two or more acts or transactions of the same class of crimes or offenses." It was clearly competent for congress to prescribe such a rule of pleading for the courts of tJ1e United States, and the rule applies to prosecutions under the section in question; and this provision is but expressive and declaratory of the general rule of criminal pleading in this country. The rule at common law would require separate indictments for each offense. This statute, and the statutes in many of the states and in England, modify the common·law rule so far as, when the stat· ute defines two or more acts or transactions of the same class of crimes or offenses, to allow them to be joined in the same indict· ment, but each offense to be charged in separate counts. There never was any rule in civil or criminal pleading for joining two or more causes of action in the same count. As said by the court in U. S. v. Sharp, Pet. C. C. 131: "It is essential to justice that the grand jury should have it in their power to ignoramus any offense in the indictment which is not supported by evidence. But it two or more are thus blended together in one count, they must find the whole or ignoramus the whole; whereas, if they are arranged in different counts, they may find one a true bill, and ignoramus to the other. How is the petty jury, in a case of this kind, to find their verdict? If they say the prisoners are guUty of part of the offense described in one count, and not guilty as to the others, they do not find them gnilty 'in manner and form;' but where there are different counts they are the same as different indictments."
I know of no exceptions to this rule, especially in work· ing an infamous punishment. The apparent exceptions are where different phases or stages of the same offense are set out in the same count. This is always allowable. A familiar instance of this in this country is where, under the police regulations of a state, persons are prohibited from engaging in dealing in spirituous liquors without first taking out a license. In such case the defendant may be charged in the same count with selling, trafficking in, bartering, or giving away spirituous liquors. Here the substance of the offense is that of dealing in that business without a license, and the selling, bartering, or giving away are but different phases of the same offense. Clifford v. State, 29 Wis. 327. So the charge of murder includes a charge of manslaughter, which is a lesser stage of homicide; and the prisoner may be convicted of either under the same count. In State v. Smith, 61 Me. 386, the rule, and the reason for it, are laid down as follows: "No rule of criminal pleading is better established than that which prohibits the joinder of two or more substantivE! offenses in the same count. A. sub·
682
FEDERAL REPORTlilR.
Knopf v. State, 84 Ind. 316; State .v. Shields, 8 Blackf. 151; State v. McPherson, 9 Iowa, 1)3; Reed v. :people, 1 Parker, Crim. R. 481, and many other cases. See Bisb. Crim. Proc. § 432, and cases cited. The demurrers to counts are slUltained.
stantlve Is Qne whIch Is completetn Itself, and Is not dependent upon another. Where several acts relate to the same transaction, and together constitut.e but one ottense, they may be charged in· the same count, but not otherwise. Each count in an indictment must stand or fall by itself. The jury cannot find a verdict of guilty as to one part and not guilty as to another part of the same count. This strictness of pleading is necessary, in order that the accused may not be in doubt as to the specific charge against which he is called to defend, and that the court may know what sentence to pronounce." The Sll-me rule is laid down by the supreme court of Indiana in
In re LUM MN YING. (DIstrict COurt, D. Oregon. No. 8,666. 1. CONPLIQ'l'; WS-("'HINESE MARRIAGEB-VALID ITY. A J;IllU'l'111gesolemnized in China according to the laws. and customs thereot;bnt while the bridegroom Is in America, is not valid in America. 2. CHINESE'-ExCLUSION ACTS;
February 2, 1894.)
Where a woman, married according to Chinese laws to a Chinaman then in tlw United StateEl, is brought to the United States by direction of her hU!lbaJ;ld.,both acting in good faith, she is entitled toland, there being . no evidenlllJ that she is IL prOliltitute.
Petition for writ of habeas corpus. Petitioner discharged. B. B. and G. W. P. Joseph; for petitioner. DanieIR..Murphy, for the United States. BELLINGER, District It is admitted that the person claiming to be the husband of the petitioner is a merchant doing business in this city. Is the petitioner his wife? He testified that she was betrothed to him at two years of age, and that su months ago the marriage was solemnized according to the laws of China. lie fqrtb.er testified that he had never seen his wife until her here. Upon thislaiit statement, I concluded to remand the petitioner. without further inquiry, but deferred to the urgent request of her attorneys to .be heard as to this alleged China ,marriage, and as to the bona fidoes of the marriage transaction. The onlY authority cited as to what constitutes the solemnization of marriageu.llder Chinese laws is an article in the Encyclopedia llritannicaby Prof. R. K. Douglas, professor of Chinese in King's College, London. to this authority, marriage in China Is an which the most concerned have nothinl; to do. T}1e duty of filial piety is said to be the final object of Chinese religi01,ls teaching, and, under its influence, parental will is a supreJjD:e authority, from which there is no appeal. Marriage, therefore,i.$,not the result of acquailltancesb.ip. "The bridegroom
