dictments for the fraudulent use of the mails in pursuance of the same scheme.14

Where several indictments are consolidated, a general verdiet is proper, and that will be sustained if any of the counts be good and charge an offense.15 Whether, in such a case, the defendant may be sentenced to more than the maximum punishment for one of the offenses charged, depends upon the circumstances.16 Where two indictments were tried together, but there had been no order for their consolidation, it was said that the defendant might "have been lawfully sentenced to a term of imprisonment on each indictment separately, the sentences to take effect together, or one after the other, as the court in pronouncing judgment should direct.17

It seems that a defendant aggrieved by the consolidation should move to quash the indictments or to compel an election.18 The consolidation of indictments is largely within the discretion of the trial court and will rarely be reviewed upon writ of error.19

§ 505a. Severance. An indictment may be severed to the extent of directing a separate trial of the charges against each defendant or of separate counts against the same defendant.2 Whether a severance should be directed rests in the discretion of the court and will rarely be reviewed. When the questions presented on the trial of some defendants are materially different upon the trial of the others and it appears probable that serious antagonism will arise between them; a severance may be ordered.4

14 LeMore v. U. S., C. C. A., 253 Fed. 887.

15 U. S. v. Stone, 8 Fed. 232. See U. S. v. Patterson, 6 McLean, 466, Fed. Cas. No. 16,011; U. S. v. Seagrist, 4 Blatchf. 420, Fed. Cas. No. 16,245; State v. Callicutt, 1 Lea. (Tenn.) 714.

16 Ex parte Hibbs, 26 Fed. 421. See Ex parte Peters, 4 Dillon, 169, Fed. Cas. No. 11,027; U. S. v. Maguire, 3 Cent. Law J. 273, Fed. Cas. No. 15,708; Re Haynes, 30 Fed. 767. 17 Re Haynes, 30 Fed. 767, 771. Fed. Prac. Vol. III-30

18 U. S. v. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14,572; Dolan v. U. S., C. C. A., 133 Fed. 440, 446, 39 C. C. A. 274.

19 Lemon v. U. S., C. C. A., 164 Fed. 953.

§ 505a. 1 U. S. v. Rockefeller, 222 Fed. 534.

2 Dolan v. U. S., C. C. A., 133 Fed. 440, 446.

3 Ball v. U. S., 163 U. S. 662, 41 L. ed. 300.

4 U. S. v. Rockefeller, 222 Fed. 534.

§ 505b. Amendment of Indictments. There is no statutory authority for the amendment of an indictment.1

It has been said, that the authorization of such an amendment would be a violation of the Fifth Amendment to the Federal Constitution, since it would authorize a conviction upon an indictment which had not been found by a grand jury.2 The court has no power to strike out part of a count in an indictment. Amendment of a caption is immaterial. It has been held that the Government may abandon part of a charge in a count of an indictment, when what is left sets forth a criminal offense and the defendant is not injured by such abandonment.5 It was then said: ""Amend' means much more than 'abandonment.' It means to abandon a position and to carry the intention into effect by a change in the indictment so as to conform to the changed position. An amendment has operation as from the beginning, and relates back to the inception of the action, while abandonment simply pertains to the future." "The abandonment of some of the recitations in the indictment does not change the indictment, but it changes the proof which is offered. The effect of a abandonment can only have operation as, what is known in law, as a nolle prosequi.” 6

But it has been held that the defect of duplicity cannot be cured by a nolle prosequi as to part of a count.7

The admission of a letter by the accused correcting a clerical error in a statement quoted in the indictment is not an amendment of the indictment.8

§ 506. Indictments for the violation of the national banking laws. The Revised Statutes provide: "No officer acting under the provisions of this Title shall countersign or deliver to any association, or to any other company or person, any circulating notes contemplated by this Title, except in accordance with the true intent and meaning of its provisions. Every officer who violates this section shall be deemed guilty of a high misde

§ 505b. 1 U. S. v. Munday, 211 Fed. 536, 538.

2 Ibid.

3 Dodge v. U. S., C. C. A., 258 Fed. 300.

4 Gardes v. U. S., C. C. A., 87 Fed. 172.

5 U. S. v. Munday, 211 Fed. 536. 6 Ibid.; 211 Fed. 536, 539.

7 U. S. v. Dembowski, 252 Fed. 894, 898.

8 Bettman v. U. S., C. C. A., 224 Fed. 819.

meanor, and shall be fined not more than double the amount so countersigned and delivered, and imprisoned not less than one year and not more than fifteen years.

1

"Whoever shall mutilate, cut, deface, disfigure, or perforate with holes, or unite or cement together, or do any other thing to any bank-bill, draft, note, or other evidence of debt, issued by any national banking association, or shall cause or procure the same to be done, with intent to render such bank-bill, draft, note, or other evidence of debt unfit to be reissued by said association, shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both.2

"Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or wilfully 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 persons, 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 an 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." 3

"It shall be unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn upon the association unless the person or company drawing the check has on deposit with the association, at the time such check is certified, an amount of money equal to the amount specified in such check. Any check so certified by duly authorized officers shall be a good and valid obligation against the association; but the act of any officer, clerk, or agent of any association, in vio

§ 506. 1 U. S. R. S., § 5187.

2 U. S. R. S., § 5189.

3 U. S. R. S., § 5209.

lation of this section, shall subject such bank to the liabilities and proceedings on the part of the Comptroller as provided for in section fifty-two hundred and thirty-four." 4

A later statute provides: "That any officer, clerk, or agent of any national banking association who shall wilfully violate the provisions of an act entitled 'An act in reference to certifying checks by national banks,' approved March third, eighteen hundred and sixty-nine, being section fifty-two hundred and eight of the Revised Statutes of the United States, or who shall resort to any device, or receive any fictitious obligation, direct or collateral, in order to evade the provisions thereof, or who shall certify checks before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof in any circuit or district court of the United States, be fined not more than five thousand dollars, or shall be imprisoned not more than five years, or both, in the discretion of the court." 5 The crimes named by these statutes are infamous and must be prosecuted by indictment. It is the intention of the statute not to use the words "embezzle" and "wilfully misapply" as synonymous. In order to misapply the funds of the bank it is not necessary that the officer charged should be in the actual possession of them by virtue of a trust committed to him. He may, unlawfully, abstract them from the other funds of the bank, and afterwards criminally misapply them, or by virtue of his official relation to the bank he may have such control, as to direct an application of the funds in such a manner and under such circumstances as to constitute the offense of wilful misapplication. Where an officer of a national bank permits a firm, of which he is a member, to overdraw its account with intent to defraud, he is punishable criminally under these sections.8

A charge of the embezzlement, abstraction or wilful misap

4 U. S. R. S., § 5208.

5 Act of July 12, 1882, c. 290, 22 St. at L. 162, § 13.

6 U. S. v. DeWalt, 128 U. S. 393, 32 L. ed. 485; Sheridan v. U. S., C. C. A., 236 Fed. 305.

7 U. S. v. Northway, 120 U. S. 327, 332, 333, 30 L. ed. 664, 665, 666.

8 U. S. v. Fish, 24 Fed. 585.

plication of the funds of a national bank need not be described. by the words used to describe a larceny.9

It is sufficient to describe the property converted as "certain monies, funds and credits of the bank of the amount and value of $5,000, a more particular description of which is to the grand jury unknown.10 An allegation that it was held by the bank as a deposit for the sole use and benefit of a depositor and creditor thereof is not bad as charging the conversion of the property of such depositor instead of the funds of the bank.11

The charge that the defendant committed the acts alleged, in his capacity "as president and agent," does not vitiate the counts, which so describe him.12 A charge that the funds alleged to have been embezzled were at the time, in the possession of the defendant, as president and agent, is sufficient.18 A charge of facts constituting a conversion is not bad because it avers that it was done with an intent to convert the money.14 An averment that a national bank officer wrongfully used the bank's money in his care and under his control, for the purpose of bribing certain city officials in his own interest, is a sufficient charge of an appropriation to his own use, although there was a further averment that there was an attempt to convert the money to the use of such officials, and that it was so converted.15 A count was held to be sufficient which charged that the president of a national bank made a certain check upon it, for a specified amount, to the order of the vice-president, and delivered the check to the latter, then knowing that the latter did not then have, on deposit with the said association, the amount specified therein; that the said defendant as vice-president, and the president of the bank caused to be paid upon such check the amount thereof, out of the moneys of the association, in excess of all amounts which the vice-president was then entitled to draw out of the moneys, funds and credits of the association; that those two officers then intended that the vice-presi

9 U. S. v. Northway, 120 U. S. 327, 30 L. ed. 664.

10 Sheridan v. U. S., C. C. A., 236 Fed. 305.

11 Ibid.

12 U. S. v. Northway, 120 U. S. 327, 30 L. ed. 664.

18 Ibid.

14 Coffin v. U. S., 156 U. S. 432, 450, 39 L. ed. 481; Morse v. U. S., 161 Fed. 429, 433.

15 McKnight v. U. S., C. C. A., 97 Fed. 208.