'

87 FBD1lJRAL REPORTER.

. ," .,;, ·.· .1

c' ,

.the .and, as we find no error in the charge, their verdict should not be disturbed. The 'judgnient of the circuit court is affirmed.
GALLOT v. UNITED ·STATES. (Circuit .Court of Appeals, Fifth Circuit. No. 647.
L

MITTED. oJ. ERRORS -

AprU 19, 1898.)

EVIDENCll: AD-

2.

Unde( rule 1;1 of the circuit court of appeals (21 C. C. A. p:1., and 78 Fed. cx!.), requiring the assignment of errors to quote the full substance of evidence alleged to have been' erroneously admitted or rejected, and to set. out the part of the charge referred totOtldem verbisi assignments that "the court erred In permitting evidenGe 8,s shown In .bllls Ok Bxceptions numbers two and three," which errors can only be ascertained by a careful reading of a voluminous recOl'd,' and' 'that "the court erred iIi. its charge," etc., referring to marked lines and numbers in the written opinion for instructions erroneously. given and refused,. wilt pot be considered. MISAPPLICATTC:)N OF NATIONAL BANK FUNDS-AIDING AND ABETTING-DEATH The death.of the principal before Indictment Is no obstacle to the prosecutlonand 'nlWisliment of one charged With aiding and abetting an officer, clerk, or agent' of a natIonal bank to abstract, ml!illPply, or embezzle the funds thereof, In violation of Rev. St. § 5209, which makes such offense a misdemeanor.
OF P:B1NOIPAL. .

REFERBNCE TO ENTIRE CB;AR<7E . . ...

S. COMPETENCY OF JOROR--,,-IMPRESSIONSANDOPINIONS;"'IMPARTIALITY. A juror who says he has an impression' or opinion as to guilt or Innocence

of defendant, formed fromnewspllpers and rumors, that it would require evidence to remove· it, but that It would yield to evidence, and that he can and will give the defendant a l'aIrand Impartial trial according to the evidence that may ·be adduced before him., is competent.

4.

CRIMINAL TRIAT,s-READING INDICTMENT.

Where. an all alike, except as to amounts of mon,ey dates ofmlsapplleation; it is sufficlen.t to read one count In full to the "jury, explain the difference, and state, the amount and date charge4 In each. of the. other counts.

5.

Two INDICTMIllNTS..,..CASESCONSOLIDATED-NuMEROUS COUNTS-VERDICT.

OnelndiGtment In 36 counts defendant with aiding in the abstraction of ,36 specified amounts of, money, at 36 specifIed dates. . Another inhim with aiding in the misapplication of the same amounts, dictment upon the .same dates. The twowel.'e tried together, 'and the jury returned a verdict of as charged,': Held, that theverc'iict was definite, certain, .reslloIls,lve to the issues, and not a double conviction. the sentence imposed by'the court being Imprisonment for a less term. than the maXimum . .. under 'anyone count. Pardee, CIrcuit Judge, dissenting.

In Error ,the Oircuit Court of the United States, for the East· ern District of Louisiana.
The plaintiff in error, Lonis Gallot, was indicted, tried, and convicted In aidLouis Colomb, a bookkeeper In "the .Union. National Bank, ing and with the and Willful misapplication of the funds, and credits of the banlL .TWo indlctmeIHs were presented againsthjm, which were subsequentlycohsoHdated and holed' together.' Each' Indictment contains 36 counts charging 36'lleparate and distinct .offenses, and were drawn 1lllder section 5209 of the Itevi,&ed"Statutes of the United States, which is as follows: "Sec. 5209. Every presldent,dlrector, cashier, teller, clel'k, or agent of any association, who · ":i
i' ,"'"

to

GALLO'f

STATES.

447

abstracts, or willfully misapplies any of' 'the mOlleys, funds, or credits of tbe associationj or who, without authority from'tbe directors, issues or puts In circulation any of the notes of tbe assoeiatlonj 01' who, without such authority, Issues' or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft," bill of exchange, mortgage, judgment, or decree; or wbo makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud tbe association or any otl;ler company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed tl) examine the affa'irs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent In any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten." In one Indictment he Is charged with the aiding and abetting in the abstraction of 36 specified amounts of the moneys, funds, and, l:!redits of the Union. National Bank upon 36 specified dates. In the other indictment he is charged with a,idlng and abetting in the willful misapplication of the same amounts upon the same dates as charged in the first indictment. To each of the Indictments Galll>t filed a plea, pleading the 'death of Louis Colomb prior to any indictment as a bar against tbe trial of himself. Dem,urrers were filed to the pleas, and were sustained, and tbe pleas overruled. Gallot th,en filed demurrers to the indictment, again obj\lcting to be trIed upon the because of the death of Louis Colomb. These demurrers were overruled, and the case went to trial, resulting in a verdict Of "guilty as charged." It now comes before this court on five bills of exceptions and twenty·slx assignments of error.

J. :no Beckwith, for plaintiff in error. J. Ward Gurley, for the United States. Before PARDEE and McCORMICK, SWAYNE, District Judge.

Circuit

Judges,

and

SWAYNE, District Judge" after stating the facts as above, delivered the opinion of the court. By the nineteenth and twentieth assignments of errors it is set out ;that the court erred in permitting evidence as shown in bills of exceptions Nos. 2 and 3, which errors, it would seem, this court was expected to ascertain by a careful reading of over 60 pages of record, and an inspection of the questions and objections and the rulings of the court, and exceptions thereto taken by the defendant below, contained therein. By the twenty-third and twentyfourth of errors we are informed that the court below erred in its charge given to the jury in each portion thereof marked by lines in said written opinion and marked 1,. 2, 3,4, 5, 6, 7,8, and 9, and shown in the bill of exceptions No.5, and the court erred in refusing each of the several charges and instruc· tions in Nos. 2 and 5 as shown in the bill of exceptions. Rules 10 and 11 of this court (21 C. C. A. exi., and 78 Fed. cxi.) are as follows:
(10) "The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of court at large to the jury In trials at common law, upon any general exception to the whole of such charge. But tbe party excepting shall be required to state distinctly the several matters of law In such charge to which he excepts; and those matters of law, and those only, shall be Inserted in tbe bill of exceptions ann allowed by the court." (11) "The plaintiff in error or appellant shall file with tbe clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors, which sball set out separately and particUlarly each error asserted and intenned to be urged. No writ of error or appeal shall be allowed until such assignment

448

87 ,,FEDlllRAL,

oferrorashaIl have l:!een 111ed. ,When the error alleged Is to the admissIon or to tb.e.,.r.e ti.,.0.II ..feVIClen.ce, th.e assign. ..je.c. o '. ..'.lor. e ...rrors Shall.' quote· the full substance of tbe evidence adwitted or Wbell the error alleged ,Is to the charge ot tbe. cOurt. the assignment of errol-$!,hall set out the part. referred to totidem It 'be In or In instructions refused. Such asverbis, tl'anscrlpt of the record and be printed signment ot errors shall fOll'm part 'ot" with it. When this Is not done., thE! CO).1Usel will not be heltrtl, except at the request ot the court; and errors. notas,slgned according to this rtlle will be disregarded, but the, court, at Its option, 'way notice a plain' error not assigned."

The assignments of errors'. 19, 20, 23,. and 24 being in violation 'of the above rules 10' and 11 of this court, we decline to examine and. pass upon the attempted Jobe raised there· The first nine, and the 15th, 16th, 17th; 18th, 22d, :26th, and 27th assignments errors raisethe'q\lesti6n so often repeated in the record of the right of the, defepdant,Louis tried, un· del' section 5209, as an aider"aRd abettor of Louis Colomb, who was then dead! and had not been indicted or prosecuted during his lifetime. The ingenious .andableargument of counsel for plain. tiff in error was interesting, and, had it not peen for the statute (section 5209) in question, would be effective., He seemed to be thoroughly familiar with and dwelt at length on the decisions at common law, and even extep,qed his argument to the consideration of accessories to crime· both before and after the fact. Without attempting to review the n ll merous cases cited and commented upon, we think a 'etmsideration of the statute above quoted and some of the decisions relating thereto will dispose of the question. Tpe act (section 5209) in question was passed by congress for the purpose of sustaining and profeetingnational· banks created by and under its authority, and by its express 'language the crime eharged is made a Whether this was done to prevent persons charged with crime from availing themselves of the pernicious technicalities' that had crept into the common-law deeisionsand practice in regard'to principal and accessory, we are not now called upon to decide; but no one can question the authority of congress to make such classification, or the binding force of it in reference to the application of different rulings that belong thereto..' Hence the ableargutpent of counsel for defendant, both ()ral and printed, directed to the common-law decisions of principal and agent, does not apply to this case. Oongresshas established the offense here charged to bea misdemeanor, and he who aids or abets in committing such fj.u' 'ofl:ense can be tried independently as principal, irrespective of the presence of the one he aided. The supreme court of the United States, 'in U. S. v. Gooding, 12 Wheat. 475, passes upon a similar statute, and declares: "The fifth instruction turns upon a. doctrine applicable til principal and acces,
"

sory in cases of telany, either at the common lawaI.' by statute. The present is the case ot a misdemeanor, and the. doctrine, therefore, cannot be applied to It; for In cases of misdemeanor alltliose who are concerned in aiding or abetting, as \¥eIl. as in perpetratlng,the' act, are principals. Under such circumstances there!s no .. room fur question of actuiil or constructive presence or absence, for, whether present or absent, all are principals. They may bE! Indicted and punished accordingly; Nor is the trial or convIction of any actor IndispenSa91e to furnish arig.b.t to try the person who aids or abeta. the

GALLOT V. UNITED STATES.

449

Each, In the eye of the law, Is deemed guilty as a principal. In the present indictment, the offense Is I'n the third and fourth counts laid, by aiding Ilnd abetting, in tbe very terms of the act of congress. If the crime, therefore, could be supposed to be of an accessorial nature, it is truly alleged, according to the fact, not merely according to the intendment of law. We do not consider that the terms 'aid' and 'abet,' used In this statute, are used as technical phrases, belonging to common law, because the offense is not made a felony, and therefore the words require no such interpretation. The statute punishes them as substantive offenses, and not as accessorial, and the words are, therefore, to be understood as in common parlance, to import assistance, co-operation, and encouragement."
'.let.

The plaintiff in error in this case is indicted under a special statute (Rev. St. § 5209), and it is evident upon inspection of this statute that its spirit and purpose is to punish every president, officer, cashier, or agent, etc., and likewise to punish every person who aids or abets said officer or agent in any violation of the section. There is no difficulty about the definition of the word "aid," and "abet" is defined as follows: "To aid, countenance, encourage in, to incite, stimulate, or instigate to a criminal act." Therefore the purpose of this trial was to ascertain whether any such officer, clerk, or agent had violated the act, and whether Louis Gallot, the plaintiff in error, had aided him in doing so; not for the purpose of convicting the officer or agent, but for the sole purpose of ascertaining the guilt or innocence of the plaintiff in error; and the objection that Louis Colomb was dead, and had passed beyond the realm of human courts, so often repeated, without being indicted or tried, and that he could not now be tried because the presumption of his innocence that existed in his lifetime had followed and attached to his record after death, and that he could not be tried as a principal, therefore the question as to whether the plaintiff in error had ever aided him in the commission of such offense was beyond the power of the federal courts to determine, we think was not well taken. The offense charged against the plaintiff in error is a misdemeanor. He was properly tried under the circumstances, and 1).e was the only person on trial; and the only necessity of inquiring into the record of the doings of Louis Colomb was to ascertain whether or not a crime had been committed, not for the purpose of convicting the said Colomb, but for the purpose of enabling the jury to determine whether or not the defendant below had aided in the commission of the offense as charged in the indictments. Plaintiff in error's rights on the trial as to the admission of evidence and in all other respects were equal to and as well protected as if Louis Colomb had been in court and on trial with him. He suffered no disadvantage from his absence, and had no right to complain because he was tried alone. 'fhe next question of law raised by the 10th, 11th, 12th, 13th, and 14th assignments of error is to the competency of certain jurors impaneled in the case, on the ground that they had previous to the trial formed an impression from newspapers and rumors and other sources as. to the guilt or innocence of the defendant. They also stated that these impressions and opinions would yield to evidence, and that they could and would give the defendant a fair and impartial trial according to the evidence that might be

450

87 FEDERAL REPORTER.· '

before them as jurors.. ,'Some of them stated'that it would require evidence to remove their impressions. 1t -W"ill need but a short review; of the cases on this subject to show that these objections are not well taken. 'In the state of Louisiana the supreme c()urt,in the case of State v. Covington, 45 La. Ann. 979, 13 South. 266, in a short' opinion announces the settled law of the state as follows:
''The juror against whom the objection Is ruled answered on his voir dire, and stated that he had formed an opinion from conversing with one of the witnesses for the state, but that he could lay aside theoplnion he had formed, and decide the case on the law and the evidence adduced on the trial. The defendant had exhausted his challenges when he challenged the juror for cause, which was overruled. The answer of the juror disclosed that he was a competent juror, thll.t he was free from blas or prejUdice, and his mind in that condition to impartially try the defendant. In the case of State v. Dugay, 35 La. .Ann. 327, this court said: 'Our last researches on this point were sugg('sted in the case of State v. De 34 La. .Ann. 186, in which we took occasion to make a thorough review of previous opinions on this subject, and in which we reaffirmed the rUle, sanctioned in numerous cases, under which jurors who had formed and expressed opinions as to the guilt Or innocence of the accused, but who l).Sserted that they felt able to do Impartial justice according to the law aJ:!.d the evidence in the case, were ruled to be competent jurors. We distinctly and emphatically reiterate that this Is the correct rule, with the reasonable hope that it will be understood by the profession.' State v. Dent, 41 La. .Ann. 1083, 7 South. 694; State v. Dorsey, 40 La. .Ann. 740, 5 South. 26; State v. Ford, 42 La. .Ann. 255, 7 696; Sta.te v. Garig,43 La. .Ann. 365, 8 South. 934. The answer of the juror brings him within the rulings of the cases cited." ,

In Spies v. State, 123 U. S. 179,8 Sup. Ct. 30, Chief Justice Waite, speaking for the court, says:
, l'In Reynolds v. U. S., 98 U. S. 145, we said 'that upon the trial of the issue of fact raised by' a challenge to a juror in a criminal case, on the ground that he had formed and expressed an opinion as to the IssUeS to be tried, 'the court will practically be called upon to determine whether the ,nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the fa.cts are concerned, like any other issue of that character, upon the evidence. The findings of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error Is manifest. * * * It must be made clearly, to appear that upon the evidence the court ought to have found the juror had ,formed such an opinion that he could not, in law, be deemed impartial. The case must be one in which it is manifest the law left nothing to the "conscience or discretion" of the court.''' '

, The language of the late Chief Justice Agnew of Pennsylvania is so appropriate, and expresses our views so correctly, upon this subject, in which some commendable progress has been made in this country during the last half century, that we adopt it in this connection:
"We must either recede, and go baclt to the practice of an age when Ignora'nce of passing events constituted a characteristic of the time, and exclude every juror who has formed any opinion, even the slightest; or ,we must stand abreast \Vlth the present age, when every remarkable event of .to-day Is known all over the country to-mon-ow, and exclude those only whose opinions are so fixed as to be prejudgments, or have been formed on the known evidence in the case. It Is needless to say the world moves and can-Ies us with it, and if we ,lag behind we must commit the trial of the most important causes in life to

GAI,.:r..QT

v.

UNITED STATES.

4.51

those so ignorant their dark minds have never been smitten by the rays of intelligence." O'Mara v. Com., 75 Pa. St. 424, 428.

The twenty-first assignment of errors is as follows:
"(21) The court erred in allowing the district attorney to state the indictments herein to the jury after partial reading thereof, as shown in bill of exception No.1 herein."

It appears from the record that the first count of each indict· ment was read to the jury in full. Then it was explained to them that the only difference between the counts read and the remaining counts in the indictment was the respective amounts and dates, and the amount and date charged in each count was then stated in their respective order. This method gave the jurors a perfect and clear understanding of the contents of the indictments,-an understanding that would not have been improved by reading the whole of the indictments in full, with all of the legal verbiage contained therein,-and this was a method which in no way prejudiced the defendant, and gave him no cause of complaint. See Agnew v. U. S., 165 U. S. 44, 17 Sup. Ct. 235, and cases cited therein. The remaining question of law raised by the twenty-fifth and part of the twenty-sixth assignments of error is that the verdict in the case was not responsive to the issues in the indictments, and was uncertain and indefinite, and was a double conviction on each and every specific sum named in the indictments. As we have already seen, the indictments in this case and the charges contained therein are clear and specific. The verdict of the jury is as fol· lows: "New Orleans, June 29th, '97. We, the jury, find the defendant guilty as charged. Geo. Norton, Foreman." Briefly, it is as clear and positive and emphatic as the English language can express it, and it is in the usual, proper, and legal form. As to the question of double conviction, it has been abundantly established that a verdict of guilty upon the whole indictment must stand if anyone of the counts is sustained by competent testi· mony; and the sentence imposed by the court of. eight years in the penitentiary at Columbus, in the state of Ohio, being two years less than the maximum penalty that could have been imposed upon him upon anyone count of the indictments, gives him no cause for complaint. For the reasons given in Gardes v. U. S. and Girault v. Same, 87 Fed. 172, the sentence imposed on the prisoner is modified by striking out the words "at hard labor," and, thus modified, the judgment appealed from is affirmed.

PARDEE, Cjrcuit Judge (dissenting). While congress may have the power to make the aiders and abettors of national bank officials in the embezzlement and misapplication of bank funds principal offenders, and triable as such, yet in section 5209, Rev. St., it has not done so. This appears from the plain reading of the section, and is the construction given by the supreme court of the United States. In Coffin v. U. S., 162 U. S. 664, 669, 16 Sup. Ct. 943, 946, that court, in considering the proper construction of section 5209, says:

4152
'''However, the real premise upon which. the whole argument rests, II that. If the accused was guilty at all, he was guilty as a principal, and not as an aider and abettor. But it Is not necessary to give much time to the consideration of this claim, In view of the clear intent of congress as' expressed in the statute under review. It is evident that, no matter how active the co-operation Gf third persons may have been in the wrongful act ofa. bank officer or agent, such third person is required to be charged as an alder and abettor in the offense, and prosecuted as such. The primary object of the statute was to protect the bank from the acts of its own servants. As between officers and agents of the bank and third persons co-operating to defraud the bank, the statute contemplates that a bank officer shall be treated as a. principal offender. In every criminal offense there must, of coUrse, be a principal,and It follows that without the concurring act of an officer or agent of a bank thIrd persons cannot commit a violatlon of the provisions of sectlon 5209. If, therefore, a vioiation of the statute in question Is committed by an officer and an outsider, the one must be prosecuted as the principal and the other as the aider and abettor."

There is no warrant in the common law, nor in any statute of the United States, for indiCting, trying, and convicting an accessory or aider and abettor, or a subordinate offender, when the principal offender dies before indictment and trial. In the same case the following instruction to the jury was approved:
"The burden of proving Haughey and the defendants guilty. .... charged rests upon the government, and this burden does not shift from It. Haughey and the' defendants are presumed to be innocent until their guilt In manner and form as charged in some count of the indictment is proved beyond a reasonable doubt. To justify yol1 in returning a verdict of guilty, the evidence should be of such a character as to overcome this presumption of Innocence, and to satisfy each one of you of thegullt of Haughey and tl1e defendants as charged, to the exclusion of every reasonable doubt."

Without warrant from the common law, and in the absence of statutory authority, and in the teeth of the presumption of innoa court and.jury find a dead man guilty of a crime cence, how beyond a reasonable doubt? Congress has seen fit to declare the offenses denounced by to be misdemeanors. All the they are conceded to be infamous crimes, because of the pun,ishment awarded, and offenders under the statute must be tried It is that if congress, by nallling an offense, can place infamous: crimes in the category of misdemeanors, congress can also provide fo.r principal .and subordinate offenders ·in .misdemeanors, and intend trial and proceediJ!.gs under :the;i\tatute shall be accordiJ!.gto the, well-known and understood .r"\lles ,heretofore governing the. ,of subordinate offenders. I do riot deem it necessary to further.elaborate my reasons. The exhaustive brief of the learned counsel for the plaintiff in error deals with this question in a masterly manner, and the convictions re:s'ulting from its study compel lIle to announce my respectful from the opinion and jUdgment of the court.
l" 1._,

UNITED STATES V. lJEAN LINSEED-OIL CO.

453

In re THOMAS. (Circuit Court of Appeals, Sixth Circuit. No. 522.
OLEOMARGARINE-USE IN NATIONAL SOLDIERS' HOME-REGULATION BY STATE.

April fI, 1898.)

The governor of the Soldiers' Home at Dayton, Ohio, in serving to the Inmates as food oleomargarine furnished by the government, is not subject to the law of the state prescribing the manner in which oleomargarine shall be used in eating houses. The legislature having no power to regulate the conduct of such institution, the statute is to be construed as not applying thereto.

Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio. This was an application by J. B. Thomas, governor of the Soldiers' Home at Dayton, Ohio, for a writ of habeas corpus to release him from imprisonment under state process for alleged violation of the state statutes in serving to the inmates of the Home oleomargarine, without first complying with the state regulations in that regard. The petitioner was discharged by the circuit court (82 Fed. 304), and the present appeal was taken from its order. C. B. Bosler and D. L. Sleeper, for appellant. Judson Harmon and D. W. Bowman, for appellee. Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges. PER CURIAM. The facts of this case are stated in the opinion of Taft, circuit judge, who heard the case in the court below. His opinion is reported in 82 Fed. 304. With respect to the question of law involved, we concur in the reasoning upon which Judge Taft's opinion proceeds (and which we are content to adopt as our own), and in the conclusion which he reached, save that we prefer to rest our approval of the order made by the court below upon the ground that, inasmuch as the legislature of Ohio had no power to regulate the conduct of this administrative agency of the national government by such a statute as is here in question, it ought to be presumed that the legislature did not intend it to have such an application, and that the statute should be construed ly. The order of the court below is affirmed, with costs.
UNITED STATES v. DEAN LINSEED-DIL CO. (Circult Court of Appeals, Second CircUit. No. 57. 1.
CUSTOMS-,-DRAWBACK-LINSEED·OIL CAKE.

APJ:1l 7, 1898.)

Where linseed, on which a duty of 20 cents per bushel had been paid, was manufactured Into 011 and oil cake, and the 011 exported, the drawback, under section 22 of the act of August 27, 1894, should be computed In proportion to the value which the 011 cake bears to the oU, and not in proportion to the weight which the exported oU cake bears to the weight of the imported . linseed. 78 Fed. 467, reversed.