Agnew v. United States
165 U.S. 36 (1897)

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U.S. Supreme Court

Agnew v. United States, 165 U.S. 36 (1897)

Agnew v. United States

No. 447

Submitted November 18, 1898

Decided January 11, 1897

165 U.S. 36

Syllabus

When a person is notified that his case is to be brought before a grand jury, he should proceed at once to take exception to its competency, and if he has had no opportunity of objecting before bill found, then he may raise the objection by motion to quash or by plea in abatement; but in all cases, he must take the first opportunity in his power to make the objection. In this case, the venire issued November 18; a second venire December 2; the court opened December 3; the indictment was returned December 12; the plea in abatement was filed December 17. Held that it was too late.

An exception was saved as to the taking of notes by a juryman, but, as the record does not show that any notes were taken, there is nothing for it to rest on.

On the trial of the president of a national bank indicted for misapplication of its funds, its cashier testified in his favor as to his financial condition and standing. He was then asked "do you know what his commercial rating was at that time?" The question, being objected to was ruled out. Held that the ruling was correct.

The same witness on cross-examination was asked why he had resigned his position as cashier at a date named, which was after the acts complained

Page 165 U. S. 37

of and before the indictment. The question being objected to was admitted. Held that there was no error in this.

The question at issue being what was the defendant's knowledge and opinion of his own financial condition, evidence as to the opinion of others on that point was properly excluded.

The opinions of the financial world as to the rating or standing of the defendant when the acts complained of were committed were not admissible in evidence.

In criminal cases, the burden of establishing guilt rests on the prosecution from the beginning to the end of the trial; but when a prima facie case has been made out, the necessity of adducing evidence then devolves on the accused.

The instruction of the trial court to the jury in this case that

"if you find that the defendant placed that which was worthless or of little value among the assets of the bank at a greatly exaggerated value and had that exaggerated value placed to his own personal account upon the books of the bank, from such finding of fact you must necessarily infer that the intent with which he did that act was to injure or defraud the bank, but this inference or presumption is not necessarily conclusive"

was not error.

The trial court is not bound to accept language which counsel employ in framing instructions, nor to repeat instructions already given in different language.

The court instructed the jury that

"the crime of making false entries by an officer of a national bank with the intent to defraud, defined in the Revised Statutes of the United States, § 5209, includes any entry on the books of the bank which is intentionally made to represent what is not true or does not exist, with the intent either to deceive its officers or to defraud the association. The crime may be committed personally or by direction. Therefore the entry of a slip upon the books of the bank, if the matter contained in that deposit slip is not true, is a false entry. If the statement made upon the deposit slips is false, the entry of it in the bank and the books of the bank is false,"

and refused to give the following, asked for by defendant:

"The making of a false entry is a concrete offense which is not committed where the transaction entered actually took place and is entered exactly as it occurred. . . . The truthful entry of a transaction charged as fraudulent does not constitute a false entry within the meaning of the statute."

Held that there was no error.

The evidence or want of evidence justified the refusals to give the instructions requested by defendant's counsel and referred to in No. 10 in the opinion of this Court, and in regard to those referred to in No. 11,the true view of this branch of the case was fairly covered by the charge of the trial court.

Plaintiff in error was indicted in the United States Circuit Court for the Southern District of Florida for violation of § 5209 of the Revised Statutes, which is as follows:

Page 165 U. S. 38

"SEC. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association, or who, without authority from the directors, issues or puts in circulation any of the notes of the association, or 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 who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs 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."

The indictment contained eight counts, charging that Agnew, being president of the First National Bank of Ocala, Florida, unlawfully misapplied the moneys, funds, and credits of the bank with intent to convert them to his own use and to injure and defraud the bank by causing a check for $3,400 belonging to the bank to be entered as a credit on his personal account with the bank, his account at the time being largely overdrawn, and he being largely indebted to it; that he caused a false entry of $3,400 to be made to his credit on the books of the bank by means of a false deposit slip, which he caused to be made in his own favor, with the intent on his part to injure and defraud the association; that he embezzled and converted to his own use, with the intent to injure and defraud the association, moneys and assets thereof to the amount of $2,500; that he unlawfully misapplied the moneys, funds, and credits of the association, with intent to convert them to his own use, and with intent to injure and defraud the association in this: that he purchased for the bank certain bonds, of the par value of $5,000, of the Globe Phosphate Mining & Manufacturing Company, paying for them the

Page 165 U. S. 39

sum of $2,500, and, without the knowledge and consent of the banking association, placed the bonds among its assets and caused them to be credited to his personal account on the books of the bank at the sum of $5,000, knowing the bonds to be entirely worthless, and of no commercial value, and thus willfully misapplied the moneys, funds, and credits of the bank to the amount of $2,500, and converted the same to his own use; that he feloniously embezzled and converted to his own use $7,500 of the moneys, funds, and credits of the bank, with intent to injure and defraud it; that he unlawfully and willfully misapplied the moneys, funds, and credits of the bank, with intent to convert the same to his own use and to injure and defraud the bank, by purchasing, acting ostensibly for it, certain bonds of the Globe Phosphate Mining & Manufacturing Company of the par value of $10,000, for $2,500, and, without the knowledge and consent of the bank, placing said bonds among the assets of the bank as a part thereof, and causing the sum of $10,000 to be credited to his own personal account on the books of the bank, he then and there well knowing that the bonds were worthless, and of no commercial value, and thus willfully misapplying and converting to his own use $7,500 of the moneys, funds, and credits of the association; that he embezzled and converted to his own use, with intent to injure and defraud the association, $7,500 of the bank's moneys and assets; that he unlawfully and willfully misapplied the moneys, funds, and credits of the bank, with intent to convert the same to his own use, and to injure and defraud the bank, by purchasing $10,000 of the Globe Phosphate Mining & Manufacturing Company's bonds for $2,500, placing them, without the knowledge and consent of the association, among the assets of the association at $10,000, and causing the sum of $10,000 to be placed to his personal credit on the books of the association, knowing said bonds to be worthless, and of no commercial value, thus willfully misapplying and converting to his own use $7,500 of the moneys, funds, and credits of the bank with the aforesaid intent.

The indictment was returned December 12, and plaintiff in

Page 165 U. S. 40

error was arraigned December 17, 1895, and filed a plea in abatement as follows:

"And the said Enoch W. Agnew, in his own proper person, comes into court here, and, having heard the said indictment read, says that the grand jury which found said indictment was an illegal grand jury, in this: that after sixteen had failed to attend upon the regular venire, the court ordered that a special venire issue for ten grand jurors, to be drawn according to law. Said grand jurors so ordered by the court were directed to be taken from the County of Duval. That the clerk and marshal, in drawing said venire, whenever a name was legally drawn from the box, if said party so drawn was not from the County of Duval, laid aside said name, and continued drawing until ten names from the County of Duval were obtained, and which illegal drawing of said venire tended to the prejudice of this defendant, and the court, on excusing three returned on the second venire, ordered that four names be drawn for jurors to complete the panel. That said jurors were ordered to be drawn from the box, and the clerk and marshal drawing the same were ordered to take those that were from Duval County as they came from the box, and the said clerk and marshal, as the names were drawn, rejected and did not place on the venire said names so drawn, but rejected and laid them aside, until names came out of the box of parties resident of Duval County, which drawing was illegal and tended to the prejudice of the defendant. And, upon said venire's being returned, showing A. K. Leon and Julius Kaufman summoned, and Alex. Sabel and Frank Robinson not found, the court ordered that four names be drawn from the box and in said order directed that said four names should be taken from the County of Duval. That the said United States marshal and clerk, in obedience to said order, drew from the box more than four names, and where the names were of persons not resident of Duval County, rejected and laid them aside, and continued drawing until Dennis A. Andreu, Benjamin F. Manier, John L. Marvin, and Samuel Morris were drawn. And so John L. Marvin, John E. Olney, Z. L. Anderson, Charles E. Bell, W. G. Candlish, A. R. Paxon,

Page 165 U. S. 41

and Dennis A. Andreu were drawn illegally by said marshal and clerk, and not in accordance with the statute of the United States in such case made and provided, which requires that where less than sixteen attend, the court shall order the marshal to summon from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And so the names of many persons who were duly drawn from the jury box were not placed upon the venire, but were, in the pursuance of the aforesaid orders, after being drawn from the box, rejected and laid aside by the clerk and marshal drawing the same, for the purpose of completing the grand jury from the residents of the County of Duval. And the defendant says that he was entitled to have the said grand jury completed according to law, and the said grand jury so impaneled and sworn as aforesaid was not drawn and impaneled in accordance with the statutes of the United States providing for the drawing and impaneling of grand juries, but was illegal. And this defendant says that such drawing tended to his injury and prejudice."

"Wherefore he prays judgment of the said indictment, and that the same may be quashed."

To this plea the United States filed a demurrer, and, issue being joined thereon, the court, after argument, held the plea insufficient, to which plaintiff in error excepted and pleaded not guilty. The cause was set for trial on January 3, on which day a jury was impaneled, the trial proceeded with, and a verdict of guilty returned January 7. Motions for new trial and in arrest of judgment were submitted and denied, and sentence thereupon pronounced, and the cause brought here on writ of error.

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