3. EMBEZZLEMENT-INDICTMENT-DESCRIPTION OF OFFENSE.

An indictment for embezzlement of public money considered, and held to sufficiently describe the offense charged.

On Demurrers to Indictments.

See 115 Fed. 343.

Marion Erwin, U. S. Atty., Samuel B. Adams and Thomas F. Barr, Special Asst. U. S. Attys., and Alexander Akerman, Asst. U. S. Atty.

Peter W. Meldrim, William W. Osborne, and Alexander A. Lawrence, for defendants Benjamin D. Green and J. F. Gaynor.

SPEER, District Judge. It is not impossible that at certain stages in the evolution of our criminal law the arguments so ably advanced by the prisoners' counsel would have been regarded as controlling on the construction of an ordinary criminal indictment. There has, however, been a great advance, not only in criminal pleading, but in the interpretation placed on criminal statutes. This has been accomplished with the beneficial purpose on the part of government to bring men accused of crime to trial on the merits before a jury of their peers. A clause of the Revised Statutes cited in a previous ruling in this case declares:

"No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding therein be affected by reason of any defect or imperfection in matter of form only which shall not tend to the prejudice of the defendant." Rev. St. § 1025 [U. S. Comp. St. 1901, p. 720].

A similar doctrine, with a similar purpose, is found in the Code. of our state. Pen. Code 1895, § 929:

"Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury."

The obligation is on the government in every case to make out its charge against the accused beyond reasonable doubt. It is a presumption of law that the prisoner is innocent. When the charge is made, it is then the duty of the court, in obedience to this modern practice in criminal cases, to discourage technical objections to indictments unless they allege defects prejudicial to the prisoner in his defense. That must be the test by which this demurrer will be determined. Now for a week we have been engaged in hearing objections of a legal, or alleged legal, character, made to prevent the trial on these indictments, and to secure the discharge of these prisoners upon technical grounds. Up to the present moment the court has not been able to discover anything in these objections which will deprive the prisoners of an essential legal right. Do the demurrers just argued point out any failure of averment in the indictment which will have that effect?

Take first, the argument based upon the decision of the Supreme Court in the Hartwell Case, 6 Wall. 386, 18 L. Ed. 830. The objection is, as pointed out in that case, that the penalty of the

statute under consideration is only directed against bank officers and the like, and, under the familiar rule of construction, this would not include the prisoners. When, however, we look to the statutory law as it has been enacted, we find in section 5497 [U. S. Comp. St. 1901, p. 3707] a clear provision, which adopts the definition of the crime as described in the case above mentioned, and extends it to all other persons, whether bankers and the like or not, and includes them also in the penalty attached. Doubtless the legislative mind, after the decision in 6 Wall., supra, was rendered, discovered that the defect in the original statute of 1866 was such that it permitted many who had been guilty of embezzlement of public moneys to go unwhipped of justice. This was the mischief. The remedy was furnished by the remedial statute, which, as stated, extends the operation of the law to all persons of whatever character. The facts stated in the indictment, if true, would bring the prisoners within that provision of the amended statute, and they are sufficiently set forth in the indictment. The Revised Statutes are binding on this court, as the Code of Georgia is in a Georgia court. It is the Code of the United States. It was adopted by act of Congress, which made it and all of its provisions the law of the land. Now Congress had power to enact the amendment. While this is apparently inimical to the ruling of the Supreme Court, it is now controlling on all the courts.

Let us next consider the objection decided before the law was changed, that these persons are not sufficiently described when called "fugitives from justice." Words are taken to import the interpretation ordinarily placed upon them, and this expression is in no sense ambiguous. The manner in which they fled, whether "darkly in the dead of night" or by a Pullman train; where they stopped; how they disported themselves during the period of their absence from this jurisdiction-much of that may be necessary to be proven. But when it is alleged in the indictment that they are fugitives from justice, they are sufficiently put upon notice of the charge which the government means to prove if it can, and which, should the government produce sufficient prima facie evidence, they must furnish evidence to refute.

So, too, with the objection of insufficiency of allegation with regard to the drafts payable to the treasurer of the Atlantic Contracting Company. This is that the averments state that these drafts are payable to the order of the treasurer of that company, and delivered to him, and that there was no averment that he had authority to indorse or negotiate them. I am, however, of the opinion that where it is alleged that a draft was drawn by a disbursing officer of the treasury upon funds under his control, and that it was delivered to an officer of the corporation with a fraudulent or criminal intent, it is sufficient, so far as that question is involved. The court will take judicial cognizance of the fact that the engineer officer had power to draw such a draft. The court will take cognizance of the fact that the treasurer of the contracting company had power to indorse the draft. It was then payable at the subtreasury, or over the counter

of any bank in the United States whose officers would accept the theory that the United States government is solvent. There is much else in the way of averment with regard to this feature of the indictment, all of which discloses its sufficiency as such.

It is also urged that there is insufficiency with regard to the description of the mattresses which it is alleged were used as an instrumentality of the alleged fraud, but these mattresses are not evidence which need to be described with very great particularity. Nobody is attempting to charge the defendants with stealing a mattress. If a charge had been made of that sort, it must have been described with the particularity necessary in an indictment for simple larceny in this state. The reference to these mattresses was, to an extent, incidental. They figured as an element of the alleged fraud charged upon these prisoners, and it is wholly impossible for the government to charge their number, their location, or their exact description. The law does not make unreasonable exactions on the pleader in preparing descriptive averments in an indictment of this general character. Let us suppose a man was indicted for fraudulent participation in a scheme to empty 1,000 barrels of turpentine of high grade, which had been sold at that grade, and by filling the barrels with turpentine of a much inferior grade. It would not, I think, be necessary for the pleader to set out the precise grade of the turpentine withdrawn and that substituted. The substantial charge is embezzlement, and the embezzlement and the accompanying fraud as accomplished are sufficiently described when the description is sufficient to fairly put the defendants on notice of the character of the proof which would be brought against them, so that they can prepare with their proof to meet it.

I believe I have sufficiently discussed the tenor and effect of the demurrer. In the In the opinion of the court, formed after very careful and attentive consideration of the authorities and the arguments of prisoners' counsel, that there is nothing in this case so far which ought to deny to the American people and to these prisoners the right to have the issues presented by the indictments tried upon the merits and passed upon by a jury of their countrymen, as the law directs.

For like considerations, the demurrer to the indictment charging the defendants with receiving money fraudulently obtained or embezzled will also be overruled.

An order will be taken accordingly.

UNITED STATES v. GREENE et al.

(District Court, S. D. Georgia, E. D. January 17, 1906.)

CRIMINAL LAW-CONSOLIDATION OF INDICTMENTS-CHARGES RELATING TO SAME

TRANSACTION.

Separate indictments against the same defendants, charging severally conspiracy to defraud the United States, embezzlement from the United States, and presenting false claims against the United States, where the alleged object of all of the acts charged was the misappropriation of a fund appropriated by Congress to be expended in a specified river and har

bor improvement, relate to the same transaction, within the meaning of Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720], and may properly be consolidated for trial thereunder, where it will facilitate the trial and will not be to the prejudice of defendants.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 1376.

Consolidation of or trial of indictment together, see note to Dolan v. United States, 69 C. C. A. 287.]

On Motion to Consolidate Indictments.

See 115 Fed. 343.

Marion Erwin, U. S. Atty., Samuel B. Adams, and Thomas F. Barr, Sp. Assts. U. S. Atty., and Alexander Akerman, Asst. U. S. Atty.

William Garrard, Peter W. Meldrim, William W. Osborne, and Alexander A. Lawrence, for defendants.

SPEER, District Judge. Orally. The law upon this subject is not in any sense ambiguous. Section 1024 of the Revised Statutes [U. S. Comp. St. 1901, p. 720.] provides:

"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 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, and if two or more indictments are found in such cases, the court may order them to be consolidated."

Now, that is the act of Congress which is controlling upon the action of the court. It specifically makes the consolidation of indictments relating to the same transactions, and which may be properly joined, as fully equivalent to the joining in many counts, relative to the same transaction, and which may be properly joined in one indictment. It is fully sustained by the decisions of the Supreme Court quoted. Nothing is offered to the contrary, save the arguments or principles submitted by one of the counsel for the prisoners.

The law in our own states accomplishes the same thing in another way. For instance, in a charge of murder there is implied a charge of manslaughter, as I understand. The charge also for manslaughter of different grades, a charge of assault and battery, or, perhaps, a charge of simple assault. There are murders which are felonies, manslaughters which are felonies, manslaughters which are misdemeanors, included by operation of law in one indictment. Now, we scarcely lodge an indictment in this court, in an ordinary case of misdemeanor, which does not contain counts in regard to which are different punishments. Take a case of illicit distillation. The printed forms of the indictment will disclose a charge for carrying on the business of a distiller without giving bond, removing distilled spirits on which the tax has not been paid, for working in a distillery over which no sign is kept with the words "Registered Distillery" in plain letters, as required by law. Each of these offenses have different penalties attached to them by an act of Congress, and yet there is no difficulty whatever in trying and reaching a proper verdict where the accusations of these crimes are on an indictment of that sort. Now,

it is not to be questioned that much may be said, and forcibly said, upon the general lines of arguments submitted by Mr. Meldrim; but, unhappily for the argument, lucid and graceful as it is, the court is controlled by the imperative language of the statute.

Now, the next inquiry is: Are these acts or transactions connected together? Or, are they acts or transactions of the same class of crimes? In either case, there may be a consolidation. Let us look at the general aspect of the case. Of course, we are bearing in mind that what the court may say is accompanied by the statement, which has been made and will again be made at the proper time, that the prisoners are assumed to be innocent till the contrary is proved; yet it has been made manifest that it is the policy of the government to appropriate from the treasury often large sums to improve the harbors and rivers of the United States. This I believe is done under the general welfare clause of the Constitution, or under the provision to regulate interstate and foreign commerce. There has been a long contest over it by gentlemen who take different views of our organic law, some who insist that it is merely a compact, and so forth, with very limited and restricted powers, also insisting that Congress has no right to vote money for internal improvements of this character; but the pevailing idea has been all along that Congress possesses that right, and, when the act of Congress adopting the proper construction is accompanied by an appropriation for a particular locality, we never hear any bitter resentment expressed on the part of those who reside in that locality.

Thus it was by an appropriation of this character that Congress determined to improve the river and harbor of Savannah, and the port of Fernandina and its approaches. It appropriated sums for this purpose amounting to millions. The expenditure of these funds was intrusted to one of its engineer officers. He was made a disbursing officer. It is alleged in the indictment that these funds were not legally and honestly appropriated for the purpose which Congress intended, but by many crimes, also alleged in the indictments, that it went into-it was misappropriated by the disbursing officer and by the prisoners at the bar.

Now, how can it be said that these indictments do not relate to one and the same transaction? It was the improvement of the approaches to two of the seaports of the nation. It was money coming from a common source, the public treasury; it was money appropriated for a common purpose by the national Legislature; the crimes, it is alleged, were accomplished through the connivance of the disbursing officer of the government and the prisoners at bar.

Nothing can be, in the appropriate language of the assistant district attorney, more completely interlaced about one and the same transaction than the averments in these indictments. The object, according to the allegations, was the misappropriation of this fund, its embezzlement. The consequence injustice to the government and injustice to the people, if the charges are true, were disregarded, and, though perhaps presented in kaleidoscopic forms, if you please, it all relates to the same subject-matter.