The offense of aiding or abetting an officer of a national bank
in committing one or more of the offenses set forth in Rev.Stat.
§ 5209 may be committed by persons who are not officers or
agents of the bank, and consequently it is not necessary to aver in
an indictment against such an aider or abettor that he was an
officer of the bank or occupied any specific relation to it when
committing the offense.
In an indictment for soliciting or inciting to the commission of
a crime or for aiding or assisting in its commission, it is not
necessary to state the particulars of the incitement or
solicitation or of the aid or assistance.
The plain and unmistakable statement of this indictment as a
whole is that the acts charged against Haughey were done by him as
president of the bank, and that the aiding and abetting was also
knowingly done by assisting him in the official capacity in which
alone it is charged that he misapplied the funds.
This indictment further examined and held to clearly state the
misapplication and actual conversion of the money by the methods
described -- that is to say, by paying it out of the funds of the
bank to a designated person when that person was not entitled to
take the funds, and that owing to the insolvency of such person the
money was lost to the bank.
Where there is an averment that a person or matter is unknown to
a grand jury, and no evidence upon the subject is offered by either
side, and nothing
Page 156 U. S. 433
appears to the contrary, the verity of the averment of want of
knowledge in the grand jury is presumed.
A charge that there cannot be a conviction unless the proof
shows guilt beyond a reasonable doubt does not so entirely embody
the statement of presumption of innocence as to justify the court
in refusing, when requested, to instruct the jury concerning such
presumption, which is a conclusion drawn by the law in favor of the
citizen by virtue whereof, when brought to trial upon a criminal
charge, he must be acquitted unless he is proven to be guilty.
By section 5209 of the Revised Statutes, relating to national
banks, certain acts therein enumerated are made misdemeanors
punishable by imprisonment for not less than five nor more than ten
years. The section reads as follows:
"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 in this case was found on the 21st December,
1893, against Theodore P. Haughey, who had been president of the
Indianapolis National Bank, for violations of the foregoing
section. F. A. Coffin and Percival B. Coffin, plaintiffs in error,
and A. S. Reed, were charged therein with having aided and abetted
Haughey in his alleged misdemeanors. The indictment is prolix and
redundant, and it is difficult to
Page 156 U. S. 434
analyze it so as to make a concise statement of its contents. It
contains fifty counts, and alleges that the various offenses
enumerated in them were committed on different dates between
January 1, 1891, and July 26, 1893. The counts embrace a number of
acts made misdemeanors by the statute, and the charges are
commingled in a very indefinite and confusing manner. All the
counts, however, may be classified as follows:
(1) Those which aver willful misapplication of the funds of the
bank at a specified time, in a precise sum, and by enumerated and
distinctly described acts.
(2) Those which, although definite as to date and amount, are
indefinite in their statement of the precise means by which the
alleged crimes were accomplished.
(3) Those which, while charging a willful misapplication of the
funds of the bank for a definite amount, are entirely indefinite as
to the date or dates upon which the acts took place, and also fail
to specify the particular acts by which the wrong was
accomplished.
(4) Those which charge false entries in the books of the
bank.
(5) Those which charge false entries in certain official
statements of the condition of the bank made to the Comptroller of
the Currency.
Under the first head -- counts which are definite as to time,
dates, amounts, and methods -- are included Nos. 1, 2, 3, and 47.
The first of these in order of date -- for the counts are not
arranged chronologically in the indictment -- is the forty-seventh,
which reads as follows:
"The grand jurors aforesaid, upon their oaths aforesaid, do
further charge and present that Theodore P. Haughey, late of said
district at the district aforesaid, on, to-wit, the 21st day of
December, in the year of our Lord 1892, the said Theodore P.
Haughey then and there being president of a certain national
banking association, then and there known and designated as the
Indianapolis National Bank, in the City of Indianapolis, in the
State of Indiana, which said association had been heretofore
Page 156 U. S. 435
created and organized under the laws of the United States of
America, and which said association was then and there carrying on
a banking business in the City of Indianapolis, State of Indiana,
did then and there, by virtue of his said office as president of
said bank, unlawfully, feloniously, and willfully misapply the
moneys, funds, and credits of the said association, which were then
and there under his control, with intent to convert the same to the
use of the Indianapolis Cabinet Company and to other persons to the
grand jurors unknown, in a large sum, to-wit, the sum of six
thousand three hundred and eighteen dollars, by then and there
causing said sum to be paid out of the moneys, funds, and credits
of said association upon a check drawn upon said association by the
Indianapolis Cabinet Company, which check was then and there cashed
and paid out of the moneys, funds, and credits of said association
aforesaid, which said sum aforesaid, and no part thereof, was said
Indianapolis Cabinet Company entitled to withdraw from said bank,
because said company had no funds in said association to its
credit; that said Indianapolis Cabinet Company was then and there
insolvent, as the said Theodore P. Haughey then and there well
knew, whereby said sum became lost to said association; that all of
said acts as aforesaid were done with intent to injure and defraud
said association; that, as such president aforesaid, the said
Theodore P. Haughey was entrusted and charged by the board of
directors of said national banking association with the custody,
control, and care of the moneys, funds, credits, and assets of said
association, and the general superintendence of its affairs."
"And the grand jurors aforesaid do further say that Francis A.
Coffin, Percival B. Coffin, and Albert S. Reed did unlawfully,
willfully, knowingly, and feloniously, and with intent to injury
and defraud said association, on to-wit, the twenty-first day of
December, in the year of our Lord 1892, aid and abet the said
Theodore P. Haughey, as aforesaid, to wrongfully, unlawfully,
feloniously, and willfully misapply the moneys, funds, and credits
of said association as aforesaid, to-wit, the sum of six thousand
three hundred and eighteen dollars. "
Page 156 U. S. 436
The second and third counts are substantially like the
foregoing, varying only in the statements of date, amount, and
method. The first and remaining count under this head, after fixing
the date of the offense and stating the amount at $5,802.84,
describes the method by which the misapplication was accomplished,
as follows:
"The Indianapolis Cabinet Company, of Indianapolis, Indiana,
presented to said bank and to the said Theodore P. Haughey, as such
president thereof, a certain bill of exchange drawn by said
Indianapolis Cabinet Company on the Indianapolis Desk Company, of
London, England, for the sum of one thousand one hundred and
ninety-four pounds sterling, and due on June 1, 1893, which said
bill of exchange was received by said Theodore P. Haughey, and
placed to the credit of the said Indianapolis Cabinet Company upon
the books of said bank, and the said Indianapolis Cabinet Company
thereupon drew its check for said sum upon the said bank, which
check was then and there paid by said bank under the direction of
said Theodore P. Haughey; that said Indianapolis Desk Company, of
London, England, did not owe said Indianapolis Cabinet Company any
sum whatever; that said Theodore P. Haughey failed and refused to
send said bill of exchange forward for collection, whereby said sum
was lost to said association; that said sum was so willfully
misapplied to the use and benefit of the Indianapolis Cabinet
Company as aforesaid."
Under the second head -- those definite as to date and amount,
but indefinite in the statement of the method by which the wrong
was committed -- are embraced counts 4, 5, 6, 7, 8, 9, 10, 11, and
12. Of these, the eighth is the first in order of time, and reads
as follows:
"The grand jurors aforesaid, upon their oaths aforesaid, do
further charge and present that Theodore P. Haughey, late of said
district at the district aforesaid, on, to-wit, the twenty-third
day of September, in the year of our Lord 1892, the said Theodore
P. Haughey then and there being the president of a certain national
banking association, then and there known and designated as the
Indianapolis National Bank, in the City of Indianapolis, in
Page 156 U. S. 437
the State of Indiana, which said association had been heretofore
created and organized under the laws of the United States of
America, and which association was then and there carrying on a
banking business in the City of Indianapolis, State of Indiana, did
then and there, by virtue of his said office as president of said
bank, unlawfully, feloniously, and willfully misapply the moneys,
funds, and credits of the said association, without authority of
the directors thereof, with intent to convert the same to the use
of the Indianapolis Cabinet Company, and to other persons to the
grand jurors unknown, in a large sum, to-wit, the sum of three
thousand nine hundred and sixty dollars and eighty-four cents, by
then and there paying, and causing said sum to be paid out of the
moneys, funds, and credits of said association, upon certain divers
checks drawn upon said association by the Indianapolis Cabinet
Company, which checks were then and there cashed and paid out of
the moneys, funds, and credits of said association aforesaid, which
said sum aforesaid, and no part thereof, was said Indianapolis
Cabinet Company entitled to withdraw from said bank, because said
company had no funds in said association to its credit; that said
Indianapolis Cabinet Company was then and there insolvent, as the
said Theodore P. Haughey then and there well knew, whereby said sum
because lost to said association; that all of said acts, as
aforesaid, were done with intent to injure and defraud said
association; that, as such president aforesaid, the said Theodore
P. Haughey was entrusted and charged by the board of directors of
said national banking association with the custody, control, and
care of the moneys, funds, credits, and assets of said association,
and the general superintendence of all its affairs."
"And the grand jurors aforesaid do further say that Francis A.
Coffin and Percival B. Coffin and Albert S. Reed at the district
and State of Indiana aforesaid, did unlawfully, willfully,
knowingly, and feloniously, and with intent to injure and defraud
said association, on, to-wit, the twenty-third day of September in
the year of our Lord 1892, aid and abet the said Theodore P.
Haughey, as aforesaid, to wrongfully, unlawful, feloniously,
Page 156 U. S. 438
and willfully misapply the money, funds, and credits of said
association, to-wit, the sum of three thousand nine hundred and
sixty dollars and eighty-four cents aforesaid."
The other counts under this classification substantially vary
only as to date and amount.
Under the third head -- those which, while charging a willful
misapplication of the funds of the bank for a definite amount, are
indefinite as to the date or dates upon which the acts took place
and also fail to specify in any definite way the particular methods
by which the wrong was accomplished -- are embraced counts 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
32, 33, 34, 35, 36. Of these counts, the first in order of time is
the seventeenth, which is as follows:
"The grand jurors aforesaid, upon their oaths aforesaid, do
further charge and present that Theodore P. Haughey, late of said
district at the district aforesaid, on, to-wit, the first day of
January, in the year of our Lord 1891, and on divers times between
said date and the 25th day of July, in the year of our Lord 1893,
the said Theodore P. Haughey, then and there being the president of
a certain national banking association, then and there known and
designated as the Indianapolis National Bank, of Indianapolis, in
the State of Indiana, which said association had been heretofore
created and organized under the laws of the United States of
America, and which said association was then and there carrying on
a banking business in the City of Indianapolis, State of Indiana,
did then and there, by virtue of his said office as president of
said bank, and without authority of the board of directors,
unlawfully, feloniously, and willfully misapply the moneys, funds,
and credits of said association with intent to convert the same to
the use of the Indianapolis Cabinet Company, a more particular
description of said moneys, funds, and credits being to the grand
jurors unknown, in a large amount, to-wit, the sum of three hundred
and seventy-five thousand dollars, by then and there cashing,
discounting, and paying, for the use and benefit of said
Indianapolis Cabinet Company, out of the funds of said association,
a large
Page 156 U. S. 439
number of worthless and insolvent notes, drafts, and bills of
exchange, being drawn upon and by divers persons, firms, and
companies, and corporations, each and all of whom were then
insolvent, as the said Theodore P. Haughey then and there well
knew, whereby said sum was wholly lost to said association, with
intent then and there and thereby to injure and defraud said
association; that, as such president aforesaid, the said Theodore
P. Haughey was entrusted and charged by the board of directors of
said national banking association with the custody, control, and
care of the funds, credits, and assets of said association, and the
general superintendence of its affairs, and agent of said
association in the transaction of all its business."
"And the grand jurors aforesaid do further say that Francis A.
Coffin, Percival B. Coffin, and Albert S. Reed, at the District and
State of Indiana aforesaid, did unlawfully, willfully, knowingly,
and feloniously, and with intent to injure and defraud said
association, on, to-wit, the first day of January, in the year of
our Lord 1891, and on divers times between said date and the 25th
day of July, in the year of our Lord 1893, aid and abet the said
Theodore P. Haughey, as aforesaid, to wrongfully, unlawfully,
feloniously, and willfully misapply the moneys, funds, and credits
of said association, to-wit, the sum of three hundred and
seventy-five thousand dollars aforesaid."
The vagueness of the date, as fixed in this charge, is somewhat
mitigated in four of the counts coming under this head -- counts
13, 14, 15, and 16 -- wherein the offense is stated to have been
committed
"on May 9, 1893, and at divers times between said date and June
18, 1893, . . . on June 19, 1893, and at divers times between said
date and July 13, 1893, . . . on the 3d day of March, 1893, and on
divers dates between said date and the 8th day of May, 1893,"
and "on May 8, 1893, and at divers times between that date and
June 18, 1893." In all the other counts, the offense is said to
have been committed between January 1, 1891, and July 25, 1893,
except in one, wherein the last date is averred to be July 26,
1893,
Page 156 U. S. 440
instead of July 25. The sum averred to have been misapplied in
counts 13, 14, 15, and 16 is different from that charged in count
17, it being in the fourteenth, $9,132.19; in the fifteenth,
$12,732.51; in the thirteenth and sixteenth, $10,106.08. In the
other counts, where the date of the offense is stated as being
between 1891 and 1893, the amount of the alleged misapplication
varies, being placed in some at $375,000, and in others at
$350,000.
The method by which the misapplication is alleged to have been
accomplished is not indefinitely stated in all the other counts, as
in the seventeenth, which we have just quoted. In some, instead of
charging that the checks or "insolvent" notes, drafts, and bills
were drawn "by or upon divers persons, firms, companies, and
corporations," it is specified that the checks or the notes
discounted were drawn by the Indianapolis Cabinet Company. With
this exception, all the counts under this head are equally vague in
regard to the specific methods of the misapplication. Some of them
state that it was made by paying out the money of the bank on
worthless checks of the Indianapolis Cabinet Company, without
giving the dates or the amounts of the checks. More allege that the
misapplication was brought about by allowing overdrafts, without
giving the dates of such overdrafts or specifying the various
checks through which the overdrafting was done. Others again allege
that the misapplication was accomplished by loaning the money of
the bank to the Indianapolis Cabinet Company, in excess of ten
percent of the capital stock, without giving the dates or the
precise amount of the loans. Again, it is charged that the
misapplication was concealed by discounting and entering to the
credit of the Indianapolis Cabinet Company a number of worthless
notes and bills, without stating who were the drawers of the notes,
or giving the dates and amounts of the entries which it is charged
were made for the purpose of concealing the misapplication. Indeed,
whatever may be the difference between the counts under this head,
there is, as has been stated, a uniformity in one respect -- their
failure to disclose the specific methods by which the alleged
offenses were committed, by giving dates and amounts. The only
partial exceptions to this are found in counts 35 and
Page 156 U. S. 441
37, wherein the general charge of payment of
"a large number of worthless and insolvent drafts and bills of
exchange in large amounts, a more particular description of which
is to the grand jurors unknown, executed by and upon divers
persons, firms, companies, and corporations, in large amounts,
to-wit,"
is followed by an enumeration of certain persons or
corporations, with a lump sum as against each person or corporation
named. The intent with which the misapplication is charged to have
been committed is not uniform in all the counts. In some, it is
averred that the misapplications were made to injure and defraud
the bank and certain companies, bodies politic, bodies corporate,
and individual persons whose names are to the grand jurors unknown;
in others, that it was made to defraud the bank alone; again, that
entries of the worthless checks paid, or "insolvent" paper taken,
were made on the books of the bank with intent to conceal the
misapplication, and to deceive certain officers of the corporation,
whose names are to the grand jurors unknown, or to deceive certain
agents appointed or to be appointed by the Comptroller of the
Currency, etc.
Under the fourth head -- those which charge the making of false
entries in the books of the bank -- are embraced counts 37, 38, 39,
40, 41, 42, 43, 44, 45, and 46. The counts under this head very
only as to the particular false entry complained of, the date when
made, and the folio of the account book where entered. Each
particular false entry specified, except one, covers two counts,
one charging it to have been made with intent to injure and defraud
the association (bank), the other averring it to have been made to
deceive any agent appointed, or who might be thereafter appointed,
to examine the affairs of the bank, "the names of said agent or
agents being to the grand jurors unknown."
The remaining counts belong to the fifth class -- that is,
relate to false entries which it is alleged were made in statements
of the condition of the bank furnished to the Comptroller of the
Currency.
A trial was begun under the indictment on the 10th of April,
1894, and progressed until the 25th of that month, when,
Page 156 U. S. 442
by consent of all parties, the jury was discharged because of
the corrupt misconduct of one of the jurors. The court thereupon
set the cause down for trial on the first of May. The defendants
applied for a continuance upon two grounds: (1) because of the
accidental wounding of the leading counsel for the accused, and his
consequent inability to take part in the defense, and (2) because
the general nature of the charges involved hundreds of
transactions, covering thousands of dollars, and a long period of
time, necessitating the examination of over two thousand entries in
the books of the bank, which were in the hands of the officers of
the government, who denied access thereto. The court refused the
motion for continuance, and exception was duly reserved. The trial
commenced on May 4.
During the course of the trial, many exceptions were reserved to
the admission or rejection of testimony. They went not only to the
admissibility of the proffered testimony under particular counts,
but were also taken to the admission of any evidence whatever, upon
the theory that the entire indictment charged no offense, therefore
no proof could be made under it. Other objections were also
reserved to comments made by the court upon the evidence as it was
adduced, etc. On the close of the case for the prosecution, the
defendants moved the court to oblige the government
"to elect and specify the particular transactions in each count
of the general counts of the indictment in this case, to-wit, from
the 17th to 36th, both inclusive, upon which it relies as a
substantive charge, and upon which it will claim a conviction of
the defendants, or either of them, said election to be made before
the evidence on behalf of the defendants is commenced, to the end
that they, and each of them, may know to what particular charge in
each count their evidence is required to be addressed."
To the refusal of the court to grant this motion exception was
reserved. The reason for refusing the request is not stated, but in
the charge of the court to the jury, the following language was
used, which indicates its opinion on the subject:
"The particular acts of misapplication described in the several
specific counts must be established by proof as therein
respectively
Page 156 U. S. 443
charged. If, however, there are any willful misapplications
shown by the evidence which are not covered by special or specific
counts, they may be included under the general counts, and a
verdict thereon rendered accordingly."
Before the case went to the jury, the prosecution abandoned the
forty-seventh, forty-eighth, forty-ninth, and fiftieth counts of
the indictment, thus eliminating from it one of the specific counts
and all those which referred to false entries in official
statements as to the condition of the bank made to the Comptroller.
On the close of the case, the defendants proffered to the court
forty-five written requests to charge, and, upon the court's
refusing them all, excepted to such refusal as to each, or rather
as to forty-four thereof. To the charge of the court actually
delivered to the jury, the defendants reserved twenty-six
exceptions. A controversy exists as to whether one of the
twenty-six exceptions was properly taken. The facts, as stated in
the bill of exceptions, are as follows:
After the court had delivered its charge to the jury, and before
it retired, the court said:
"If it is the desire of counsel for defendant to reserve any
exceptions to the charges given and refused, the practice in this
court requires that that shall be done before the jury
retires."
"Mr. Miller: It is, of course, if your honor please, the desire
on behalf of defendants to reserve exceptions to the refusal of
such instructions as were requested and refused, and to parts of
the instruction given. Without having a little time to examine
these instructions, it is impossible for us now to designate the
particular parts. We would like to have time to look at them for
that purpose."
"The Court: What length of time would you desire?"
"Mr. Miller: I do not know, if your honor please, how long it
would take. It has taken an hour to read them."
"Mr. Duncan: They can be made, when made, as of this time, with
permission of the court."
"The Court: Except so far as any mere verbal changes are
concerned, which, if the court's attention was drawn to, it would
at once correct, I have no objection to that method of procedure.
"
Page 156 U. S. 444
"Mr. Miller: Of course, anything that is formal, of that
character, that won't go to the substance of the matter, we should
not expect to insist on. But, as your honor can see it, it is
impossible for us, from hearing the instructions read for an hour,
to select the parts."
"The Court: There are the instructions you propose (indicating),
and these instructions I do not care to have mislaid or lost
(indicating)."
"Mr. Miller: No, sir, of course, not. For that matter, every
syllable of them has been taken down by two stenographers here --
all of your instructions, as you read them -- so there cannot be
any possibility of any trouble about them. We take them and make
--"
"The Court: Where is the bailiff?"
"Mr. Taylor: You may take these forms of the verdict and the
indictment."
"Gentlemen of the jury, you may retire with your bailiff."
The bill of exceptions then states that, at the time this
colloquy took place, the assistant attorney for the prosecution was
present in the courtroom, heard the conversation, and assented to
the arrangement thus made.
It further states that a few minutes after three in the
afternoon, the jury retired to consider their verdict; that the
defendants' counsel took the instructions given by the court which
were typewritten, and noted thereon, by enclosing the same in a
parenthesis mark with pencil, the parts of such instructions so
given by the court to which exceptions were taken, the parts thus
marked being respectively numbered; that at nine o'clock that
night, the defendants' counsel returned to the courtroom and handed
the instructions which had been so marked and numbered by them to
the judge in open court, saying that the parts marked in
parentheses and numbered were those to which the defendants
excepted, and to which they reserved their bill, under the
understanding previously had; that immediately thereafter the jury,
which had not reached a conclusion, was brought into court, and
informed by the judge that he would be within call until eleven
o'clock to receive a verdict, and if they did
Page 156 U. S. 445
not agree by that time, they might seal their verdict and bring
it into court on Monday morning, it being then Saturday
evening.
On May 28, the defendants, through their counsel, wrote out in
full their exceptions to the various parts of the charge, as marked
and numbered, and presented them to the court, which declined to
sign them because of the twenty-second exception, which it
considered not properly taken, under the understanding between
court and counsel above stated. However, the court signed the bill
of exceptions, writing therein a narrative of the facts, and
predicating its objection to the twenty-second exception on the
ground that the matter covered by it was merely verbal, and at the
time the parties were given the right to take their bill, the court
did not include any mere verbal error, which would have been
corrected if attention had been called to it in proper time. The
language contained in the charge covered by the disputed exception
is as follows:
"I do not wish to be understood as meaning that the intent to
injure, deceive, or defraud is conclusively established by the
simple proof of the doing of the prohibited act which results in
injury. What I do mean is this: that when the prohibited acts are
knowingly and intentionally done, and their natural and legitimate
consequence is to produce injury to the bank, or to benefit the
wrongdoer, the intent to injure, deceive, or defraud is thereby
sufficiently established to cast on the accused the burden of
showing that their purpose was lawful, and their acts
legitimate."
On the 28th day of May the jury returned a verdict against the
plaintiffs in error of guilty as charged on all the counts of the
indictment. After an ineffectual motion for a new trial, which
restated the various grounds of objection raised to the
admissibility of evidence under the indictment and which had also
been urged in the charges which had been requested and refused, the
defendants moved in arrest. After argument upon this motion, the
court sustained the same as to the 17th, 18th, 19th, 20th, 21st,
22d 23d 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32d 33d
34th, 35th, and 36th counts.
This reduced the indictment first, to those counts which
Page 156 U. S. 446
were specific as to date, amount, and method; second, to those
which, while specific in amount and date, were not specific as to
method; third, to four counts, Nos. 13, 14, 15, and 16, which were
not specific as to date or method, leaving in addition all the
counts charging false entries in the books of the bank. The errors
assigned here are 78 in number, and cover all the objections which
were made to the rulings of the court below during the trial, and
the exceptions based on charges requested and refused, as well as
charges given.
MR. JUSTICE WHITE, after making a statement of the case,
delivered the opinion of the court.
Many of the exceptions taken during the trial, and the requests
to charge which were refused, as well as most of the exceptions to
the charge as given, relate to the counts of the indictment which
were quashed on the motion in arrest. All these questions are
therefore eliminated. We shall hence only consider the matters
which are pertinent to the remaining counts, and shall examine
first the objections made to the indictment generally, based upon
the contention that all the counts fail to charge an offense;
second, the exceptions reserved to rulings of the court during the
trial, the effect of which is to assail the verdict and judgment
without reference to the validity of the indictment. In making this
examination, we shall concentrate the errors complained of in
proper order, thus obviating repetition, for the matters to be
considered are all reiterated by way of objection to the evidence,
of exception to the refusal to charge as requested, and of
complaints of the charges which the court actually gave.
It is contended that no offense is stated against the aiders and
abettors, because in none of the counts is it asserted that
Page 156 U. S. 447
they were officers of the bank or occupied any specific relation
to the bank which made aiding and abetting possible. The language
of the statute fully answers this contention. It provides that
"every president, director, cashier, teller, clerk, or agent of any
association, who." etc., and adds, after defining the acts which
are made misdemeanors, "that every person who with like intent aids
and abets," etc. The phrase "every person" is manifestly broader
than the enumeration made in the first portion of the statute. In
other words, the unambiguous letter of the law is that every
president, director, agent, etc., who commits the designated
offenses, shall suffer the penalties provided, and that every
person who aids or abets such officer, etc. The argument is that no
one but an officer or an agent can be punished as an aider and
abettor, and hence that every person who aids and abets, not being
an officer, shall go unwhipped of justice. To adopt the
construction contended for would destroy the letter and violate the
spirit of the law; for the letter says, "every person who aids and
abets," and the proposition is that we should make it say "every
officer or agent who aids and abets." The spirit and purpose of the
statute are to punish the president, cashier, officer, or agent,
etc., and likewise to punish every person who aids and abets. The
assertion that one who is not an officer, or who bears no official
relation to the bank, cannot, in the nature of things, aid or abet
an official of the bank in the misapplication of its funds is an
argument which, if sound, should be addressed to the legislative,
and not the judicial, department. We cannot destroy the law on the
theory that the acts which it forbids cannot be committed. In other
words, the construction which we are asked to give does not deal
with the meaning of the statute, but simply involves the claim that
it is impossible to prove the commission of the offense defined by
the law. The question whether the proof shows the commission of an
offense is one of fact, and not of law. The citation made from
United States v. Northway, 120
U. S. 333, is not apposite. True, we there said,
"All the acts charged against Fuller could only be committed by
him by virtue of his official relation to the bank, and the acts
charged against the
Page 156 U. S. 448
defendant likewise could only be committed by him in his
official capacity."
But in that case, the indictment itself charged Northway, as
president and agent, with aiding and abetting Fuller, the cashier
of the bank, and the language quoted referred to the matter under
consideration, and hence it was incidentally stated that the proof
and averment must correspond.
Nor is the contention sound that the particular act by which the
aiding and abetting was consummated must be specifically set out.
The general rule upon this subject is stated in
United States
v. Simmonds, 96 U. S. 360, as
follows:
"Nor was it necessary, as argued by counsel for the accused to
set forth the special means employed to effect the alleged unlawful
procurement. It is laid down as a general rule that in an
indictment for soliciting or inciting to the commission of a crime,
or for aiding or assisting in the commission of it, it is not
necessary to state the particulars of the incitement or
solicitation, or of the aid or assistance. 2 Wharton, § 1281;
United
States v. Gooding, 12 Wheat. 460."
The form books give the indictment substantially as it appears
here. Bishop's Forms, § 114, p. 52. Nothing in
Evans v.
United States, 153 U. S. 608,
conflicts with these views. In that case, the question was whether
the eighth count stated misapplication of the funds, and not
whether the particular acts by which the aiding and abetting were
done were necessary to be set out in the indictment. On the
contrary, the counts there held good charged the aiding and
abetting in the very language found in the indictment in hand,
"and the said Evans did then and there knowingly and unlawfully
aid and abet the said cashier in such willful misapplication with
intent in him, the said Evans, to injure and defraud,"
etc.
2. It is said that all the counts in the indictment are bad
because it is not charged that the aiders and abettors knew that
Haughey was president of the bank at the time it is averred the
acts were committed. The argument is this: the statute says that
every person who with like intent aids or abets any officer, etc.
Therefore, the fact that the aider or abettor knew that the person
who misapplied the funds was
Page 156 U. S. 449
an officer, etc., must be specifically charged. Without
considering the legal correctness of this proposition, it may be
observed that it has no application to this cause. Each and every
count here specifically avers that "the said Theodore P. Haughey,
then and there being president of the bank," and "then and there,
by virtue of his said office, as such president as aforesaid,"
"misapplied the funds," and having thus fully averred the relation
of Haughey to the bank and the commission of the acts complained of
in his official capacity, with intent to defraud, etc., the counts
go on to charge that the plaintiffs in error did unlawfully,
willfully, feloniously, knowingly, and with intent to defraud, aid,
and abet the "said Haughey as aforesaid." The words "as aforesaid"
clearly relate to Haughey in the capacity in which it is stated
that he committed the offense charged against him in the body of
the indictment. Without entering into any nice question of grammar
or undertaking to discuss whether the word "said," before Haughey's
name, and the words "as aforesaid," which follow it, are adverbial,
we think the plain and unmistakable statement of the indictment, as
a whole is that the acts charged against Haughey were done by him
as president of the bank, and that the aiding and abetting were
also knowingly done by assisting him in the official capacity in
which alone it is charged that he misapplied the funds.
3. It is further contended that all the counts of the indictment
except the first are insufficient because they fail to aver the
actual conversion of the sum misapplied to the use of any
particular person. This proposition is based on the cases of
United States v. Britton, 107
U. S. 666, and
United States v. Northway,
supra. In the
Britton Case, we said
"that the willful misapplication which was made an offense by
this statute means a misapplication for the use, benefit, or gain
of the party charged or some other person, and therefore, to
constitute the offense of willful misapplication, there must be a
conversion to the party's own use, or to the use of some one else,
of the funds of the association. This essential element of the
offense is not averred in the indictment
Page 156 U. S. 450
under consideration, but is negatived by the averment that the
shares purchased by the defendant were held by him in trust for the
use of the association, and there is no averment of a conversion by
the defendant, for his own use, or the use of any other person, of
the funds used in purchasing the shares. The counts therefore
charge maladministration of the affairs of the bank, rather than
criminal misapplication of the funds."
So, in
Northway's Case, we said,
"It is of the essence of the crime of misapplication that there
should be conversion of the funds to the use of the defendant, or
of some other person than the association."
The various counts of the indictment here are all substantially
alike in stating the conversion. We take the second as an example.
That charges that Haughey, being president of the Indianapolis
Bank, did then and there, by virtue of his office as president of
said bank. unlawfully, feloniously, and willfully misapply the
moneys, funds, and credits of the bank, with intent to convert the
same to the use of the Indianapolis Cabinet Company by then and
there causing said sum to be paid out of the moneys, funds, and
credits of the bank, upon a check drawn upon the bank by the
Indianapolis Cabinet Company, which check was then and there cashed
and paid out of the funds and credit of the bank, which sum, and no
part thereof, was the said Indianapolis Cabinet Company entitled to
withdraw from the bank, because said company had no funds in the
bank, and that the said company was then and there insolvent, which
Haughey then and there well knew, whereby said sum became lost to
the bank. This clearly states the misapplication and actual
conversion of the money by the methods described -- that is to say,
by paying it out of the funds of the bank to a designated person,
when that person was not entitled to take the funds, and that,
owing to the insolvency of such person, the money was lost to the
bank. The fact that the count charges the intent to convert money
to the use of the Indianapolis Cabinet Company does not obliterate
the clear statement of the actual conversion. In this regard, the
count is clearer and
Page 156 U. S. 451
stronger than that held sufficient in
Evans v. United
States, supra.
4. The following request was made and refused:
"Each of the forty-six counts of this indictment, except the
first, the 40th, the 41st, and the 43d, alleges that certain facts
therein referred to are unknown to the grand jury. Thus, the second
3d 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th counts each
aver a misapplication of the funds of said bank by said Haughey
with intent to convert the same to the use of the Indianapolis
Cabinet Company, and to other persons to the grand jury unknown.
The averment that the names of these persons were unknown to the
grand jurors is a material averment, and is necessary to be proven
by the government in order to make out its case in each of said
counts, because in each of said counts the charge is of a
misapplication of a single, definite, fixed sum, with an intent to
convert the same to the use, not merely of the cabinet company, but
of other persons. If, as a matter of fact, no evidence has been
placed before you showing or tending to show that the names of such
persons were unknown to the grand jury, then, as to these counts,
the government's case has failed."
In connection with this ruling, the bill of exceptions states
that there was no evidence whatever on the subject offered by
either side, and nothing to indicate that there was knowledge in
the grand jurors of the matter which the indictment declared to be
to them unknown. The instruction was rightly refused. It
presupposes that where there is an averment that a person or matter
is unknown to a grand jury, and no evidence upon the subject of
such knowledge is offered by either side, acquittal must follow,
while the true rule is that, where nothing appears to the contrary,
the verity of the averment of want of knowledge in the grand jury
is presumed. Thus, it was said in
Commonwealth v.
Thornton, 14 Gray 43:
"The fact that the name of the person was in fact known must
appear from the evidence in the case. It is immaterial whether it
so appears from the evidence offered by the government or that
offered by the defendant. But, there being no evidence to the
contrary, the objection that the party was not unknown does
Page 156 U. S. 452
not arise."
And previously, in
Commonwealth v. Sherman, 3 Allen
248, the court observed:
"It is always open to the defendant to move the judge before
whom the trial is had to order the prosecuting attorney to give a
more particular description, in the nature of a specification or
bill of particulars, of the acts on which he intends to rely, and
to suspend the trial until this can be done, and such an order will
be made whenever it appears to be necessary to enable the defendant
to meet the charge against him, or to avoid danger of injustice.
Commonwealth v. Giles, 1 Gray 469;
The King v.
Curwood, 3 Ad. & El. 815; Rosc. Crim.Ev. (6th ed.) 178,
179, 420."
It is to be observed that none of the counts as to which the
prosecution was called upon to specify remain, all having been
eliminated by the action of the court on the motion in arrest.
This concludes the examination of all the general objections to
the indictment which we deem it necessary to consider, and brings
us to the exceptions taken to the refusals to charge, as well as
those reserved to the charges actually given.
The forty-fourth charge asked and refused was as follows:
"The law presumes that persons charged with crime are innocent
until they are proven by competent evidence to be guilty. To the
benefit of this presumption the defendants are all entitled, and
this presumption stands as their sufficient protection unless it
has been removed by evidence proving their guilt beyond a
reasonable doubt."
Although the court refused to give this charge, it yet
instructed the jury as follows:
"Before you can find anyone of the defendants guilty, you must
be satisfied of his guilt, as charged in some of the counts of the
indictment, beyond a reasonable doubt."
And again:
"You may find the defendants guilty on all the counts of the
indictment, if you are satisfied that, beyond a reasonable doubt,
the evidence justifies it."
And finally, stating the matter more fully, it said:
"To justify you in returning a verdict of 'guilty,' the evidence
must be of such a character as to satisfy your judgment to the
exclusion of every reasonable doubt. If therefore you can reconcile
the evidence with any reasonable hypothesis consistent
Page 156 U. S. 453
with the defendants' innocence, it is your duty to do so, and in
that case find the defendants not guilty. And if, after weighing
all the proofs and looking only to the proofs, you impartially and
honestly entertain the belief that the defendants may be innocent
of the offenses charged against them, they are entitled to the
benefit of that doubt, and you should acquit them. It is not meant
by this that the proof should establish their guilt to an absolute
certainty, but merely that you should not convict unless, from all
the evidence, you believe the defendants are guilty beyond a
reasonable doubt. Speculative notions, or possibilities resting
upon mere conjecture, not arising or deducible from the proof or
the want of it, should not be confounded with a reasonable doubt. A
doubt suggested by the ingenuity of counsel, or by your own
ingenuity, not legitimately warranted by the evidence, or the want
of it, or one born of a merciful inclination to permit the
defendants to escape the penalty of the law, or one prompted by
sympathy for them or those connected with them, is not what is
meant by a reasonable doubt. A 'reasonable doubt,' as that term is
employed in the administration of the criminal law, is an honest,
substantial misgiving, generated by the proof, or the want of it.
It is such a state of the proof as fails to convince your judgment
and conscience and satisfy your reason of the guilt of the accused.
If the whole evidence, when carefully examined, weighed, compared,
and considered, produces in your minds a settled conviction or
belief of the defendants' guilt -- such an abiding conviction as
you would be willing to act upon in the most weighty and important
affairs of your own life -- you may be said to be free from any
reasonable doubt, and should find a verdict in accordance with that
conviction or belief."
The fact, then, is that, while the court refused to instruct as
to the presumption of innocence, it instructed fully on the subject
of reasonable doubt.
The principle that there is a presumption of innocence in favor
of the accused is the undoubted law, axiomatic and elementary, and
its enforcement lies at the foundation of the administration of our
criminal law.
Page 156 U. S. 454
It is stated as unquestioned in the textbooks, and has been
referred to as a matter of course in the decisions of this Court
and in the courts of the several states.
See Taylor on
Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence,
c. 5, 91; Best on Presumptions, part 5, §§ 63, 64; c. 3,
31-58; Greenleaf on Evidence, part 5, §§ 29, &c.; 11
Criminal Law Magazine 3; Wharton on Evidence § 1244; Phillips
on Evidence, Cowen & Hill's Notes, vol. 2, p. 289;
Lilienthal's Tobacco v. United States, 97 U. S.
237;
Hopt v. Utah, 120 U.
S. 430;
Commonwealth v. Webster, 5 Cush. 320;
State v. Bartlett, 43 N.H. 224;
Alexander v.
People, 96 Ill. 96;
People v. Fairchild, 48 Mich. 31;
People v. Millard, 53 Mich. 63;
Commonwealth v.
Whittaker, 131 Mass. 224;
Blake v. State, 3 Tex.App.
581;
Wharton v. State, 73 Ala. 366;
State v.
Tibbetts, 35 Me. 81;
Moorer v. State, 44 Ala. 15.
Greenleaf traces this presumption to Deuteronomy, and quotes
Mascardius Do Probationibus to show that it was substantially
embodied in the laws of Sparta and Athens. Greenl.Ev. part 5,
section 29, note. Whether Greenleaf is correct or not in this view,
there can be no question that the Roman law was pervaded with the
results of this maxim of criminal administration, as the following
extracts show:
"Let all accusers understand that they are not to prefer charges
unless they can be proven by proper witnesses or by conclusive
documents, or by circumstantial evidence which amounts to
indubitable proof and is clearer than day."
Code, L. IV, Tit. XX, 1, l. 25.
"The noble (
divus) Trajan wrote to Julius Frontonus
that no man should be condemned on a criminal charge in his
absence, because it was better to let the crime of a guilty person
go unpunished than to condemn the innocent."
Dig. L. XLVIII, Tit.19, l. 5.
"In all case of doubt, the most merciful construction of facts
should be preferred."
Dig. L. L, Tit. XVII, l. 56.
"In criminal cases, the milder construction shall always be
preserved."
Dig. L. L, Tit. XVII, l. 155, s. 2.
"In cases of doubt, it is no less just than it is safe to adopt
the milder construction."
Dig. L. L, Tit. XVII, l. 192, s. 1.
Page 156 U. S. 455
Ammianus Marcellinus relates an anecdote of the Emperor Julian
which illustrates the enforcement of this principle in the Roman
law. Numerius, the Governor of Narbonensis, was on trial before the
emperor, and, contrary to the usage in criminal cases, the trial
was public. Numerius contented himself with denying his guilt, and
there was not sufficient proof against him. His adversary,
Delphidius, "a passionate man," seeing that the failure of the
accusation was inevitable, could not restrain himself, and
exclaimed, "Oh, illustrious Caesar, if it is sufficient to deny,
what hereafter will become of the guilty?" to which Julian replied,
"If it suffices to accuse, what will become of the innocent?" Rerum
Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was,
along with many other fundamental and human maxims of that system,
preserved for mankind by the canon law. Decreturn Gratiani de
Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; Corpus Juris
Canonici Hispani et Indici, R. P. Murillo Velarde, Tom. 1, L. II,
n. 140. Exactly when this presumption was in precise words stated
to be a part of the common law is involved in doubt. The writer of
an able article in the North American Review (January 1851) tracing
the genesis of the principle says that no express mention of the
presumption of innocence can be found in the books of the common
law earlier than the date of McNally's Evidence (1802). Whether
this statement is correct is a matter of no moment, for there can
be no doubt that if the principle had not found formal expression
in the common law writers at an earlier date, yet the practice
which flowed from it has existed in the common law from the
earliest time.
Fortescue says:
"Who, then, in England, can be put to death unjustly for any
crime, since he is allowed so many pleas and privileges in favor of
life. None but his neighbors, men of honest and good repute,
against whom he can have no probable cause of exception, can find
the person accused guilty. Indeed, one would much rather that
twenty guilty persons should escape punishment of death than that
one innocent person should be condemned and suffer capitally."
De Laudibus Legum Angliae, Amos' translation, Cambridge,
1825.
Page 156 U. S. 456
Lord Hale (1678) says:
"In some cases, presumptive evidence goes far to prove a person
guilty, though there be no express proof of the fact to be
committed by him; but then it must be very warily pressed, for it
is better five guilty persons should escape unpunished than one
innocent person should die."
2 Hale P.C. 290. He further observes:
"And thus the reasons stand on both sides, and though these seem
to be stronger than the former, yet in a case of this moment, it is
safest to hold that in practice, which hath least doubt and danger,
quod dubitas, ne feceris."
1 Hale P.C. 24.
Blackstone (1753-1765) maintains that "the law holds that it is
better that ten guilty persons escape than that one innocent
suffer." 2 Bl.Com. c. 27, margin p. 358
ad finem.
How fully the presumption of innocence had been evolved as a
principle and applied at common law is shown in
McKinley's
Case (1817), 33 St.Tr. 275, 506, where Lord Gillies says:
"It is impossible to look at it [a treasonable oath which it was
alleged that McKinley had taken] without suspecting, and thinking
it probable, it imports an obligation to commit a capital crime.
That has been and is my impression. But the presumption in favor of
innocence is not to be reargued by mere suspicion. I am sorry to
see in this information that the public prosecutor treats this too
lightly. He seems to think that the law entertains no such
presumption of innocence. I cannot listen to this. I conceive that
this presumption is to be found in every code of law which has
reason and religion and humanity for a foundation. It is a maxim
which ought to be inscribed in indelible characters in the heart of
every judge and juryman, and I was happy to hear from Lord Hermand
he is inclined to give full effect to it. To overturn this, there
must be legal evidence of guilt, carrying home a decree of
conviction short only of absolute certainty."
It is well settled that there is no error in refusing to give a
correct charge precisely as requested, provided the instruction
actually given fairly covers and includes the instruction asked.
Tweed's Case,
16 Wall. 504;
Chicago & Northwestern
Railway v. Whitton, 13 Wall. 270. The contention
here is that inasmuch as the charge given by the court
Page 156 U. S. 457
on the subject of reasonable doubt substantially embodied the
statement of the presumption of innocence, therefore the court was
justified in refusing, in terms, to mention the latter. This
presents the question whether the charge that there cannot be a
conviction unless the proof shows guilt beyond a reasonable doubt
so entirely embodies the statement of presumption of innocence as
to justify the court in refusing, when requested, to inform the
jury concerning the latter. The authorities upon this question are
few and unsatisfactory. In Texas, it has been held that it is the
duty of the court to state the presumption of innocence along with
the doctrine of reasonable doubt, even though no request be made to
do so.
Black v. State, 1 Tex.App. 369;
Priesmuth v.
State, 1 Tex.App. 480;
McMullen v. State, 5 Tex.App.
577. It is doubtful, however, whether the rulings in these cases
were not based upon the terms of a Texas statute, and not on the
general law. In Indiana, it has been held error to refuse, upon
request, to charge the presumption of innocence, even although it
be clearly stated to the jury that conviction should not be had
unless guilt be proven beyond reasonable doubt.
Long v.
State, 46 Ind. 582;
Line v. State, 51 Ind. 175. But
the law of Indiana contains a similar provision to that of Texas.
In two Michigan cases where the doctrine of reasonable doubt was
fully and fairly stated but no request to charge the presumption of
innocence was made, it was held that the failure to mention the
presumption of innocence could not be assigned for error in the
reviewing court.
People v. Potter, 89 Mich. 353;
People v. Graney, 91 Mich. 648. But in the same state,
where a request to charge the presumption of innocence was made and
refused, the refusal was held erroneous although the doctrine of
reasonable doubt had been fully given to the jury.
People v.
Macard, 73 Mich. 15. On the other hand, in Ohio it has been
held not error to refuse to charge the presumption of innocence
where the charge actually given was "that the law required that the
state should prove the material elements of the crime beyond
doubt."
Moorehead v. State, 34 Ohio St. 212. It may be
that the paucity of authority upon this subject results from
Page 156 U. S. 458
the fact that the presumption of innocence is so elementary that
instances of denial to charge it upon request have rarely occurred.
Such is the view expressed in a careful article in the Criminal Law
Magazine for January, 1889, vol. 11, p. 3:
"The practice of stating this principle to juries is so nearly
universal that very few cases are found where error has been
assigned upon the failure or refusal of the judge so to do."
But whatever be the cause, authorities directly apposite are few
and conflicting, and hence furnish no decisive solution of the
question, which is further embarrassed by the fact that in some few
cases, the presumption of innocence and the doctrine of reasonable
doubt are seemingly treated as synonymous.
Ogletree v.
State, 28 Ala. 693;
Moorer v. State, 44 Ala. 15;
People v. Lenon, 79 Cal. 625, 631. In these cases,
however, it does not appear that any direct question was made as to
whether the presumption of innocence and reasonable doubt were
legally equivalent, the language used simply implying that one was
practically the same as the other, both having been stated to the
jury.
Some of the textbooks, also, in the same loose way, imply the
identity of the two. Stephen, in his History of the Criminal Law,
tells us that "the presumption of innocence is otherwise stated by
saying the prisoner is entitled to the benefit of every reasonable
doubt." Volume 1, 437. So, although Best, in his work on
Presumptions, has fully stated the presumption of innocence, yet,
in a note to Chamberlayne's edition of that author's work on
Evidence (Boston, 1883; page 304, note
a), it is asserted
that no such presumption obtains, and that
"apparently all that is meant by the statement thereof, as a
principle of law, is this: if a man be accused of crime, he must be
proved guilty beyond reasonable doubt."
This confusion makes it necessary to consider the distinction
between the presumption of innocence and reasonable doubt as if it
were an original question. In order to determine whether the two
are the equivalents of each other, we must first ascertain with
accuracy in what each consists. Now the presumption of innocence is
a conclusion drawn by the law in favor of the citizen, by virtue
whereof, when brought to trial
Page 156 U. S. 459
upon a criminal charge, he must be acquitted unless he is proven
to be guilty. In other words, this presumption is an instrument of
proof created by the law in favor of one accused whereby his
innocence is established until sufficient evidence is introduced to
overcome the proof which the law has created. This presumption, on
the one hand, supplemented by any other evidence he may adduce and
the evidence against him, on the other, constitute the elements
from which the legal conclusion of his guilt or innocence is to be
drawn.
Greenleaf thus states the doctrine:
"As men do not generally violate the Penal Code, the law
presumes every man innocent; but some men do transgress it, and
therefore evidence is received to repel this presumption. This
legal presumption of innocence is to be regarded by the jury in
every case
as matter of evidence to the benefit of which the
party is entitled."
1 Greenl.Ev. § 34.
Wills on Circumstantial Evidence says:
"In the investigation and estimate of criminatory evidence,
there is an antecedent
prima facie presumption in favor of
the innocence of the party accused, grounded in reason and justice
not less than in humanity, and recognized in the judicial practice
of all civilized nations, which presumption must prevail until it
be destroyed by such an overpowering amount of legal evidence of
guilt as is calculated to produce the opposite belief."
Best on Presumptions declares the presumption of innocence to be
a "
presumptio juris." The same view is taken in the
article in the Criminal Law Magazine for January, 1888, to which we
have already referred. It says:
"This presumption is in the nature of evidence in his favor
[
i.e. in favor of the accused], and a knowledge of it
should be communicated to the jury. Accordingly, it is the duty of
the judge in all jurisdictions, when requested, and in some when
not requested, to explain it to the jury in his charge. The usual
formula in which this doctrine is expressed is that every man is
presumed to be innocent until his guilt is proved beyond a
reasonable doubt. The accused is entitled, if he so requests it, .
. . to have this rule of law expounded to the jury in this or in
some equivalent form of expression. "
Page 156 U. S. 460
The fact that the presumption of innocence is recognized as a
presumption of law, and is characterized by the civilians as a
presumptio juris, demonstrates that it is evidence in
favor of the accused. For in all systems of law, legal presumptions
are treated as evidence giving rise to resulting proof to the full
extent of their legal efficacy.
Concluding, then, that the presumption of innocence is evidence
in favor of the accused introduced by the law in his behalf, let us
consider what is "reasonable doubt." It is, of necessity, the
condition of mind produced by the proof resulting from the evidence
in the cause. It is the result of the proof, not the proof itself,
whereas the presumption of innocence is one of the instruments of
proof, going to bring about the proof from which reasonable doubt
arises; thus, one is a cause, the other an effect. To say that the
one is the equivalent of the other is therefore to say that legal
evidence can be excluded from the jury, and that such exclusion may
be cured by instructing them correctly in regard to the method by
which they are required to reach their conclusion upon the proof
actually before them; in other words, that the exclusion of an
important element of proof can be justified by correctly
instructing as to the proof admitted. The evolution of the
principle of the presumption of innocence, and its resultant, the
doctrine of reasonable doubt, make more apparent the correctness of
these views, and indicate the necessity of enforcing the one in
order that the other may continue to exist. While Rome and the
Mediaevalists taught that wherever doubt existed in a criminal
case, acquittal must follow, the expounders of the common law, in
their devotion to human liberty and individual rights, traced this
doctrine of doubt to its true origin -- the presumption of
innocence -- and rested it upon this enduring basis. The inevitable
tendency to obscure the results of a truth, when the truth itself
is forgotten or ignored, admonishes that the protection of so vital
and fundamental a principle as the presumption of innocence be not
denied, when requested, to anyone accused of crime. The importance
of the distinction between the two is peculiarly emphasized here,
for, after having declined to
Page 156 U. S. 461
instruct the jury as to the presumption of innocence, the court
said: "If, after weighing all the proofs and looking only to the
proofs, you impartially and honestly entertain the belief," etc.
Whether thus confining them to "the proofs," and only to the proofs
would have been error if the jury had been instructed that the
presumption of innocence was a part of the legal proof need not be
considered, since it is clear that the failure to instruct them in
regard to it excluded from their minds a portion of the proof
created by law, and which they were bound to consider. "The proofs,
and the proofs only," confined them to those matters which were
admitted to their consideration by the court, and, among these
elements of proof, the court expressly refused to included the
presumption of innocence, to which the accused was entitled, and
the benefit whereof both the court and the jury were bound to
extend him.
In addition, we think the 22d exception to the rulings of the
court was well taken. The error contained in the charge, which said
substantially that the burden of proof had shifted under the
circumstances of the case, and that therefore it was incumbent on
the accused to show the lawfulness of their acts, was not merely
verbal, but was fundamental, especially when considered in
connection with the failure to state the presumption of
innocence.
There are other objections specifically raised to certain
particular counts in the indictment which we do not deem it
necessary to elaborately examine, but to which the condition of the
case compels us to briefly allude. Thus, the first count charges
the receipt and placing to the credit of the Indianapolis Cabinet
Company of a bill of exchange amounting to a certain number of
pounds sterling, followed by the averment that the company
thereupon drew its check for said amount. It is contended that the
check offered to show the payment of this money was for dollars,
and not for pounds sterling, and therefore there was a variance
between the indictment and the proof. This contention, we think, is
without merit. The count charged the misapplication of the sum of
$5,802.84, and averred that the misapplication was
Page 156 U. S. 462
effected by taking the bill of exchange and paying out that
amount -- in other words, the whole context -- we think, makes
plain the charge that the sum which it avers to have been
misapplied was credited as the result of taking the bill of
exchange, and that it was this sum which was paid out upon the
check of the cabinet company. Of course it is immaterial at what
rate or by what rule the pounds sterling were converted into
current money. The sum of the misapplication was the amount stated
as credited in consequence of having taken the bill of sterling
exchange.
On the subject of the counts covering the charge of false
entries in the books of the bank, the following requests were made
and refused:
"No. 18. In considering the false entry charges in the
indictment, it is necessary that you should know what constitutes a
false entry. The books of account of a bank are kept for the
purpose of accurately and truly recording the financial
transactions of the bank. An entry upon the books of the bank of
some alleged transactions which never occurred, or of a transaction
which did occur but which is falsely recorded, would be a false
entry. But any entry in which that which has been done by the
officers or agents of the bank is correctly set forth in detail is
not a false entry. If, therefore, you find from the evidence, for
instance, with reference to the alleged false entry in the 40th
count, that the bank had actually given to the cabinet company the
credit for $44,000 upon the paper presented by the cabinet company,
and had authorized said cabinet company to make its checks against
said credit, and that said entry was made upon the books simply as
a truthful record of that which had been done, then the same was
not a false entry, but was and is a true entry, and the indictment,
so far as based upon such entry, cannot be sustained."
"No.19. If Mr. Haughey, as president of the bank, received from
the cabinet company drafts, bills or notes which, by reason of the
insolvency of the parties or for any other reason, ought not to
have been received, and gave to said cabinet company credit
therefor, and afterwards caused
Page 156 U. S. 463
an entry of such credit to be made upon the books of the bank,
then whatever wrong was done in the matter by Mr. Haughey was not
in causing such entry to be made, but was, further back, in
receiving the paper and giving the credit. Not to have made the
entry would have been to commit another wrong, since it was his
duty as president of the bank to see that the books should speak
the exact truth as to that which he had caused to be done, and
however wrongful may have been his previous acts, the making of an
exact and truthful record of the same in the books of the bank was
and could be no crime under this statute."
While we consider the charges asked were in some respects
unsound, yet the exception reserved to the charge actually given by
the court was well taken, because therein the questions of
misapplication and of false entries are interblended in such a way
that it is difficult to understand exactly what was intended. We
think the language used must have tended to confuse the jury and
leave upon their minds the impression that if the transaction
represented by the entry actually occurred, but amounted to a
misapplication, then its entry exactly as it occurred constituted
"a false entry" -- in other words, that an entry would be false,
though it faithfully described an actual occurrence, unless the
transaction which it represented involved full and fair value for
the bank. The thought thus conveyed implied that the truthful entry
of a fraudulent transaction constitutes a false entry within the
meaning of the statute. We think it is clear that 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.
Judgment reversed and case remanded, with directions to
grant a new trial.
