The indictment contained eight counts, charging that Agnew, being president of the First National Bank of Ocala, Fla., unlawfully misapplied the moneys, funds, and credits of the bank, with intent to convert them to his own use, and to injure and defraud the bank, by causing a check for $3, 400 belonging to the bank to be entered as a credit on his personal account with the bank, his account at the time being largely overdrawn, and he being largely indebted to it; that he caused a false entry of $3, 400 to be made to his credit on the books of the bank by means of a false deposit slip, which he caused to be made in his own favor, with the intent on his part to injure and defraud the association; that he embezzled and converted to his own use, with the intent to injure and defraud the association, moneys and assets thereof to the amount of $2,500; that he unlawfully misapplied the moneys, funds, and credits of the association, with intent to convert them to his own use, and with intent to injure and defraud the association, in this: that he purchased for the bank certain bonds, of the par value of $5,000, of the Globe Phosphate Mining & Manufacturing Company, paying for them the [165 U.S. 36, 39] sum of $2,500, and, without the knowledge and consent of the banking association, placed the bonds among its assets, and caused them to be credited to his personal account on the books of the bank at the sum of $5, 000, knowing the bonds to be entirely worthless, and of no commercial value, and thus willfully misapplied the moneys, funds, and credits of the bank to the amount of $2,500, and converted the same to his own use; that he feloniously embezzled and converted to his own use $7,500 of the moneys, funds, and credits of the bank, with intent to injure and defraud it; that he unlawfully and willfully misapplied the moneys, funds, and credits of the bank, with intent to convert the same to his own use and to injure and defraud the bank, by purchasing, acting ostensibly for it, certain bonds of the Globe Phosphate Mining & Manufacturing Company, of the par value of $ 10,000, for $2,500, and, without the knowledge and consent of the bank, placing said bonds among the assets of the bank as a part thereof, and causing the sum of $10,000 to be credited to his own personal account on the books of the bank, he then and there well knowing that the bonds were worthless, and of no commercial value, and thus willfully misapplying and converting to his own use $7,500 of the moneys, funds, and credits of the association; that he embezzled and converted to his own use, with intent to injure and defraud the association, $7,500 of the bank's moneys and assets; that he unlawfully and willfully misapplied the moneys, funds, and credits of the bank, with intent to convert the same to his own use, and to injure and defraud the bank, by purchasing $10,000 of the Globe Phosphate Mining & Manufacturing Company's bonds for $2,500, placing them, without the knowledge and consent of the association, among the assets of the association at $10,000, and causing the sum of $10,000 to be placed to his personal credit on the books of the association, knowing said bonds to be worthless, and of no commercial value, thus willfully misapplying and converting to his own use $7,500 of the moneys, funds, and credits of the bank with the aforesaid intent.
The indictment was returned December 12, and plaintiff in [165 U.S. 36, 40] error was arraigned December 17, 1895, and filed a plea in abatement as follows:
To this plea the United States filed a demurrer, and, issue being joined thereon, the court, after argument, held the plea insufcient, to which plaintiff in error excepted, and pleaded not guilty. The cause was set for trial on January 3d, on which day a jury was impaneled, the trial proceeded with, and a verdict of guilty returned January 7th. Motions for new trial and in arrest of judgment were submitted and denied, and sentence thereupon pronounced, and the cause brought here on writ of error.
E. K. Foster, for plaintiff in error.
Sol. Gen. Conrad, for the United States.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. [165 U.S. 36, 42] Nineteen errors were assigned, of which the third, fifth, ninth, and fourteenth were abandoned, and the sixth and seventh, the twelfth, sixteenth, and seventeenth, and the eleventh and fifteenth were argued by counsel for plaintiff in error together. We will examine these alleged errors in their order.
1. That the court erred in sustaining the demurrer to defendant's plea in abatement.
Section 802 of the Revised Statutes is as follows: 'Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the district with such services.'
Under section 803, writs of venire facias, when directed by the court, were to issue from the clerk's office, and be served and returned by the marshal, in person or by his deputy, or, in case the marshal or his deputy were incapacitated, by some fit person specially appointed by the court.
By section 804, when, from challenges or otherwise, there was not a petit jury, it was provided that the marshal or his deputy should, by order of the court, return jurymen from the bystanders sufficient to complete the panel.
Section 808 reads thus: 'Every grand jury impaneled before any district or circuit court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose.'
By the act of June 30, 1879 (21 Stat. 43, c. 52), it was provided that all jurors, grand and petit, 'including those summoned during the session of the court, shall be publicly drawn [165 U.S. 36, 43] from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in section 800 of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof. ... The clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein. But nothing herein contained shall be construed to prevent any judge from ordering the names of jurors to be drawn from the boxes used by the state authorities, in selecting jurors in the highest courts of the state.'
The plea sets up, as ground for abatement of the indictment, that after the original venire had been exhausted without obtaining 16 grand jurors, the court ordered a special venire to issue for 10 grand jurors to be drawn according to law, 'to be taken from the county of Duval; that the clerk and marshal, in drawing said venire, whenever a name was legally drawn from the box, if said party so drawn was not from the county of Duval, laid aside said name, and continued drawing until 10 names from the county of Duval were obtained'; and that, some of the 10 returned on the second venire being excused, other names were drawn in the same way, and a third venire was issued, and still another, until the grand jury was completed with grand jurors from Duval county. The original venire showed that 23 persons were summoned from 10 counties, not including the county of Duval, one or more from each, and the plea stated that, when a deficiency appeared from the failure of some of those summoned to attend, the court directed the deficiency to be made up by obtaining jurors from Duval county in the manner pointed out. There are certain orders of court, certified as part of the record, which directed the drawing according to law from the various counties exclusive of Duval county, and then from that county. It will be perceived, then, that the jurors were all drawn from the body of the district, and so distributed as not to incur unnecessary expense, or unduly burden the citizens of any part of the district with jury service. [165 U.S. 36, 44] Section 802 of the Revised Statutes was brought forward from a clause of section 29 of the judiciary act of September 24, 1789, which was regarded by Mr. Justice Curtis as applicable to grand as well as petit juries. U. S. v. Stowell, 2 Curt. 153, Fed. Cas. No. 16,409. In that view we are inclined to concur, but apart from this, and without considering how far, if at all, the section may have been modified by the act of June 30, 1879, we think the plea was properly adjudged insufficient.
Such a plea must be pleaded with strict exactness. U. S. v. Hammond, 2 Woods, 197, Fed. Cas. No. 15,294; O'Connell v. Reg., 11 Clark & F. 155; Dolan v. People, 64 N. Y. 485; Jenkins v. State, 35 Fla. 737, 18 South, 485; Jenkins v. State, 35 Fla. 737, 18 South. Cr. Pl. 427; Bish. New Cr. Proc. 327, 745.
Dr. Wharton lays it down (Whart. Cr. Pl. 344, 350) that 'material irregularities in selecting and impaneling the grand jury, which do not relate to the competency of individual jurors, may usually be objected to by challenge to the array, or by motion to quash,' or by plea in abatement; that the question of the mode in which such objections are to be taken largely depends upon local statutes, but that certain rules may be regarded as generally applicable. One of these rules is that the defendant must take the first opportunity in his power to make the objection. Where he is notified that his case is to be brought before the grand jury, he should proceed at once to take exception to its competency, for if he lies by until a bill is found, the exception may be too late; but where he has had no opportunity of objecting before bill found, then he may take advantage of the objection by motion to quash or by plea in abatement, the latter in all cases of contested fact being the proper remedy. U. S. v. Gale, 109 U.S. 65 , 3 Sup. Ct. 1. Another general rule is that, for such irregularities as do not prejudice the defendant, he has no cause of complaint, and can take no exception. U. S. v. Richardson, 28 Fed. 65; U. S. v. Reed, 2 Blatchf. 456, Fed. Cas. No. 16,134; U. S. v. Tallman, 10 Blatchf. 21, Fed. Cas. No. 16,429; State v. Mellor, 13 R. I. 666; Cox v. People, 80 N. Y. 500; People v. Petrea, 92 N. Y. 128.
The original venire was issued November 18, the second [165 U.S. 36, 45] venire issued December 2,1895. The court opened December 3, 1895, and the indictment was returned December 12th, yet defendant did not file his plea in abatement until December 17th. The plea does not allege want of knowledge of threatened prosecution on the part of defendant, nor want of opportunity to present his objection carlier, nor assign any ground why exception was not taken or objection made before; and, moreover, the plea is fatally defective in that, although it is stated that the drawing 'tended to his injury and prejudice,' no grounds whatever are assigned for such a conclusion, nor does the record exhibit any such.
2. That the court erred in allowing the jurors to take notes.
It appears, from the bill of exceptions, that one of the jurymen asked the court if he 'could take notes, and jot down any items on paper,' and that the court responded: 'Certainly, you have a right to assist your memory in any way that is consistent with your conscience.' To which defendant excepted. The court subsequently admonished the jury that this was simply for the personal convenience of the juror; that he wished them to understand that their memory and recollection of the testimony were to control in arriving at a verdict; and that they should not be influenced in the least by the juror's notes.
The exception saved was to the permission to take notes and not to the use of them in the jury room. But the record does not show that any notes were taken, and there is nothing for the exception to rest on.
3. That the court erred in refusing to allow the witness McIntyre to answer this question, propounded by defendant's counsel: 'Do you know what his [Agnew's] commercial rating was at that time?'
McIntyre was cashier of the First National Bank of Ocala at the time of the alleged criminal misapplication of its funds, and had testified fully, on behalf of plaintiff in error, as to his financial condition and standing, when he was asked this question. We hold the ruling of the court correct. The point of inquiry was Agnew's actual financial condition, or what he knew, or must be held to have known, or actually and with [165 U.S. 36, 46] reason believed, that it was, and his commercial rating was not relevant.
4. That the court erred in allowing the witness McIntyre to be asked, on cross-examination, why he resigned as cashier of the bank in June, 1894, and in permitting him to answer the question.
The criminal acts charged in the indictment were alleged to have been committed in January, February, and May, 1894. McIntyre was cashier of the bank during that period, and his resignation of that office was not accepted until June, 1894. The ground assigned for the objection was that the testimony was immaterial, and the court said: 'That might be relevant, and might not If he resigned because he knew that Mr. Agnew's guaranty was not good for anything that might be relevant.'
The record thus continues:
We think there was no error committed in this regard. This witness was the officer next in rank to the president. He had testified on defendant's behalf, and his personal action was relevant on cross- examination as testing his testimony in chief. If his voluntary resignation had no connection with the conduct of his superior officer, his answer could not be injurious. If it had, then that fact tended to weaken any evidence he might have given in extenuation of the action of that officer. Besides, these answers of the witness were practically immaterial.
5. That the court erred in refusing to allow the witness Barnett to testify as to whether he considered Agnew's guaranty of $20,000 Globe Phosphate bonds, at the time he made it, good, and in striking out the testimony of the witness; and in not allowing the witness Stewart to testify as to the rating, by Dun's Commercial Agency, of Agnew, at the time he gave the guaranty of $20,000.
McIntyre had testified that he had made out two deposit tickets in favor of Agnew, and at his request, one dated February 12, and the other May 12, 1894, crediting him with depositing $10,000 in bonds in each instance; that the bonds referred to were Globe Phosphate bonds; that he had the [165 U.S. 36, 48] bonds in his possession when he made out the deposit slips; that the bonds were for $10,000 each; that Mr. Agnew asked him to give him credit for the bonds, $10,000 each time; that in each instance Mr. Agnew stated that 'he would be personally responsible to the bank that these bonds would be all right; he would guaranty the bank both principal and interest; that he would make a written guaranty at any time I would write it out.' Witness further identified a guaranty, dated February 12, 1894, as written by him, and signed by Agnew in his presence, which was read in evidence.
The witness Barnett was president of the National Bank of Jacksonville, Fla., and was called as a witness on behalf of defendant. The question put to him was: 'Are you sufficiently acquainted with Mr. Agnew's standing, in the spring of 1894, to testify as to whether or not you considered his obligation, guaranty, or indorsement at that time good for $20,000? Mr. Clark: Wait a moment. A. Yes, sir; I considered him good.' The government asked that this answer be stricken out. The court said: 'Any testimony that would show positively the financial condition of Mr. Agnew at that time, not in the commercial world,-the opinion of what his guaranty would be taken for by others,-is not a true test of what he knew himself. The opinion of others as to his standing at that time I do not think should be introduced to determine the value of that guaranty,'-and sustained the motion. The court was right in this ruling. On the question of value to Agnew's knowledge, Barnett's opinion of Agnew's responsibility was irrelevant.
The witness Stewart was the agent of R. G. Dun & Co., a commercial agency, in charge at Jacksonville, Fla. Defendant offered to show that Dun's Commercial Agency rated him at that time at a certain amount of money. The court declined to admit the evidence, and correctly ruled:
6. The tenth assignment alleged error in several distinct parts of the charge of the court, but in argument only one out of six exceptions saved thereto was relied on, namely, to the following:
The court advised the jury that, in determining defendant's intent, they might consider testimony tending to show that defendant, without notice to the board of directors, and without their knowledge or consent, had invested one-half the bank's capital in the bonds in question, and then said: 'The rule of law in regard to intent is that intent to defraud is to be inferred from willfully and knowingly doing that which is illegal, and which, in its necessary consequences and results, must injure another. The intent may be presumed from the doing of the wrongful or fraudulent or illegal act, and in this case, if you find that the defendant placed that which was worthless or of little value among the assets of the bank at a greatly exaggerated value, and had that exaggerated value placed to his own personal account upon the books of the bank, from such finding of fact you must necessarily infer that the intent with which he did that act was to injure or defraud the bank; but this inference or presumption is not necessarily conclusive. There may be other evidence which may satisfy the jury that there was no such intent, but such an inference or presumption throws the burden of proof upon the defendant; and the evidence upon him in rebuttal to do away with that presumption of guilty intent must be sufficiently strong to satisfy you, beyond a reasonable doubt, that there was no such guilty intent in such transaction.'
Undoubtedly, in criminal cases, the burden of establishing [165 U.S. 36, 50] guilt rests on the prosecution from the beginning to the end of the trial.
But, when a prima facie case has been made out, as conviction follows unless it be rebutted, the necessity of adducing evidence then devolves on the accused.
The circuit court, in this part of the charge, was dealing with the intent to injure and defraud the bank, and rightly instructed the jury that, if they found certain facts, such intent was necessarily to be inferred therefrom.
This was in application of the presumption that a person intends the natural and probable consequences of acts intentionally done, and that an unlawful act implies an unlawful intent. 1 Greenl. Ev. 18; 3 Greenl. Ev . 13, 14; Jones, Ev. 23; Bish. Cr. Proc. 1100, 1101; and cases cited.
The circuit court, however, told the jury that the presumption of the intent to injure and defraud, if the facts were found as stated, was not conclusive, but, in substance, that its strength was such that it could only be overcome by evidence that created a reasonable doubt of its correctness; in other words, that, as the presumption put the intent beyond reasonable doubt, it must prevail, unless evidence of at least equivalent weight were adduced to the contrary.
The question of the particular intent was not treated as a question of law, but as a question to be submitted to the jury; and, conceding that the statement of the court that the evidence to overcome the presumption must be sufficiently strong to satisfy the jury 'beyond a reasonable doubt' was open to objection for want of accuracy, we are unable to perceive that this could have tended to prejudice the defendant, when the charge is considered as a whole.
For the jury were further advised that, if they found the facts in question, which were again rehearsed, then the necessary inference was that the transaction was effected 'with intent to injure and defraud said bank, and such inference can only be overcome by evidence satisfactory to you that there was no such intent'; that 'the question of the intent is to be determined by the facts and circumstances, and the surroundings at the time of the transaction'; that 'the intent of the [165 U.S. 36, 51] defendant at the time he committed the transaction is the question for you to determine, and, in arriving at a conclusion on that intent, you will carefully weigh all of the testimony in the case'; that the presumption of innocence remains with the defendant until the jury are 'satisfied of the guilt beyond a reasonable doubt'; and that, 'if you are satisfied, beyond a reasonable doubt, that the transactions as charged were committed, and at the time he committed those transactions he had an intent to defraud the bank, your verdict will be one of guilty. Unless you are satisfied, beyond a reasonable doubt, that he had such intent, your verdict will be not guilty.' And again: 'The jury must be satisfied, beyond a reasonable doubt, as regards the guilt of the accused, before they can find a verdict of guilty. By a 'reasonable doubt' is not meant a possible doubt, but such a doubt, arising from the evidence, that leaves the minds of the jury in such a state that they cannot say, after having reviewed all the evidence, that they have an abiding conviction, to a moral certainty, of the guilt of the accused.'
7. That the court erred in giving to the jury the following instruction: 'The defendant is presumed to be innocent of all the charges against him until he is proven guilty by the evidence submitted to you. This presumption remains with the defendant until such time, in the progress of the case, that you are satisfied of the guilt beyond a reasonable doubt,'-and in not giving the following instruction, asked by defendant: 'Every man is presumed to be innocent until he is proved guilty, and this legal presumption of innocence is to be regarded by the jury in this case as matter of evidence, to the benefit of which the party is entitled. This presumption is to be treated by you as evidence, giving rise to resulting proof, to the full extent of its legal efficacy.'
The court is not bound to accept the language which counsel employ in framing instructions, nor is it bound to repeat instructions already given in different language. Ayers v. Watson, 137 U.S. 584 , 11 Sup. Ct. 201; Railroad Co. v. Ives, 144 U.S. 408 , 12 Sup. Ct. 679; Coffin v. U. S., 162 U.S. 672 , 16 Sup. Ct. 943. The instruction given was quite correct, and substantially covered [165 U.S. 36, 52] the instruction refused, and as to the latter the court might well have declined to give it, on the ground of the tendency of its closing sentence to mislead.
In Coffin v. U. S., 156 U.S. 432, 460 , 15 S. Sup. Ct. 394, this court, in discussing the distinction between the presumption of innocence and reasonable doubt, said: '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.' But in that case the charge of the court was thought not to have given due effect to the presumption of innocence, which there was no failure in this case to state, and the giving of the instruction asked would have tended to obscure what had already been made plain.
8. That the court erred in giving the following instruction on behalf of the government:
The exception was confined to the foregoing, but the instruction thus continued:
And in refusing to give the following instructions asked by defendant:
The instruction as given was correct, and in accordance with the rule indicated in Coffin v. U. S., 162 U.S. 684 , 16 Sup. Ct. 943. This being so, no error was committed in declining to give the others.
9. That the court erred in giving the following instruction:
In our opinion there was evidence tending to establish a state of case justifying the giving of this instruction, which was unexceptionable as matter of law.
10. That the court erred in refusing to give the following instruction, requested by defendant:
The first court of the indictment charged that Agnew, [165 U.S. 36, 54] knowing his personal account with the bank to be largely overdrawn, and that he was largely indebted to the bank, caused this check for $3,400, which was the property of the bank, to be entered to his personal credit on the books of the bank and thereby made it subject to his disposal; and, technically, the offense would not have been, in itself, condoned by any rightful application which he may have made of that particular amount of money. And, while the evidence showed that the $3,400 was received from the sale of stocks belonging to the bank, it also showed that Agnew never charged himself with the $3,400 and credited stock account, nor paid in that sum and made that credit. but that, when the bank failed, the $3,400 still stood as applied on Agnew's credit, and still remained an asset in the stock account. Such explanation as was attempted was so unsatisfactory that we do not think the refusal of the instruction constitutes reversible error.
11. That the court erred in not giving the following instruction, asked for by defendant:
The phosphate bonds were put in evidence and the record [165 U.S. 36, 55] should have contained a copy of at least one of them, but it does not, and instead there is a brief statement that they were bonds of 'the Globe Phosphate Mining & Manufacturing Company, Citrus county, Florida, each of the value of one thousand dollars, payable in gold coin of the United States, in ten years from date, or on call, at or after the expiration of two years from date, drawing interest at 8 per cent. semiannually, in gold coin, payable on the 15th day of December and June in each year, according to tenor of coupons attached, upon presentation and surrender of said coupons, respectively; default in payment of coupons, and continuing default for two months, the whole becomes due; all bearing even date, and of the same tenor and same term (ten years), executed in pursuance of vote of the stockholders and board of directors, secured by first mortgage bond upon all property, of even date, present and future, acquired by the company, the right to redeem after two years being optional with the company; said bonds dated 11th December, 1893, and signed by John A. Bishop and Herbert A. Bishop; the original having been withdrawn by order of the court, to be returned to the receiver of the First National Bank of Ocala.'
Agnew's guaranty was in these words:
The evidence was to the effect that five Globe Phosphate bonds, numbered from 1 to 5 were purchased by Agnew for the bank at 50 cents on the dollar, and credited at per. But Agnew testified that he purchased them for himself. It also appeared that two lots of Globe Phosphate bonds, of $10,000 each, were purchased at 25 cents on the dollar, and that Agnew was credited on his personal account with $10,000, in each instance, and the bonds placed in the assets of the bank, and that the bonds were subsequently sent away to be used as collateral security, and the guaranty forwarded to be put with them. The evidence further tended to show that the bonds were of little, if any, value, and that Mr. Agnew's financial condition was such as to place his guaranty in the same category. And although Agnew testified on his own behalf, he did not refer to the subject of the guaranty, or his intentions and ability in regard to it, while it appeared that the credits of these bonds were never consented to nor authorized at any meeting of the directors or stockholders.
The bonds were payable in ten years, with an option to the company to pay after two years, it being also provided that, for default in payment of interest, which was payable semiannually, continuing two months, the whole might become due. If the president of the bank received a personal credit of $20,000 for these bonds, under the circumstances disclosed, the court was not required to instruct, as requested, that, from his guaranty that the bonds and interest should be paid, the jury might find that there was no intent to injure and defraud the bank in the transaction.
The true view of this branch of the case was fairly covered by the charge of the court as follows: 'There is testimony tending to show that the defendant, at the time he was thus depositing the bonds, gave a guaranty that the bonds were good, and that he would guaranty the payment of principal [165 U.S. 36, 57] and interest. You can take that into consideration, and such guaranty can only be considered as determining the value of those bonds at that time, and the intent of the party in such transaction. ... As I say again, gentlemen, the only difficult question for you to determine is the intent of the accused. The question of the intent is to be determined by the facts and circumstances, and the surroundings at the time of the transaction; but, gentlemen, the law presumes that every party who in any way attempts anything by any guaranty, or anything of that kind, which is dependent upon future successful operations, takes the risk of the success, and that, if a person commits an offense with the intent of temporarily injuring or defrauding another party or a banking institution, although it may be his intent at the time to finally recompense or prevent any injury resulting from such act, he is not protected by such intent to finally correct the temporary wrong deed; or, in this case, if you are satisfied that, at the time he placed those bonds there, he knew that they were worthless, or of a very small value, and had a large value charged to the bank, and placed to his account, he did that with the intent, for the time being, to injure the bank, and take a wrongful advantage of the credit of the bank, no matter if at that time he had an intent to in the future remedy any injury that might come to the bank, it would not protect him, in your finding, or from your finding, what the intent was at that time.'
We have carefully explored the evidence, and considered the errors assigned, whether pressed in argument or not, and have been unable to discover any adequate ground for the reversal of the judgment.