SCOTT v. UNITED STATES, 130 F. 429

RICHARDS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court.

Section 5440 was originally enacted March 2, 1867.

Chapter 369, § 30, 14 Stat. 484 [U. S. Comp. St. 1901, p. 3676], The conspiracy then made punishable was one “to commit any offense against the laws of the United States, or to defraud the United States in any manner whatever.” In the revision the phraseology was changed to its present form, “to commit any offense against the United States or to defraud the United States in any manner or for any purpose.” This was a mere change of form. The meaning remained the same.

The object of the conspiracy must be to commit some offense against the United States in the sense only that it must be to do some act made an offense by the laws of the United States. Such has been the uniform holding of the courts of the United States. U. S. v. Martin, 4 Cliff. 156, Fed. Cas. No. 15,728; U. S. v. Sanche (C. C.) 7 Fed. 715, 717; U. S. v. Watson (D. C.) 17 Fed. 145, 148; In re Wolf (D. C.) 27 Fed. 606, 611; Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494; Stokes v. U. S., 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; Clune v. U. S., 159 U. S. 590, 595, 16 Sup. Ct. 125, 40 L.

Ed. 269; France v. U. S., 164 U. S. 676, 17 Sup. Ct. 219, 41 L. Ed. 595; Reilley v. U. S., 106 Fed. 896, 46 C. C. A. 25; Francis v. U. S., 188 U. S. 375, 23 Sup. Ct. 334, 47 L. Ed. 508. A violation of

section 5209 constitutes “an offense against the United States,” within the meaning of

section 5440. 2. But it is insisted that the indictment is bad because it does not directly aver that the false entries were intended to be made, and were made, by the plaintiff in error, who alone of the conspirators was an officer or agent of the bank. The indictment charges the conspiracy broadly, and then sets forth the details. It alleges that the plaintiff in error and Hoover conspired to violate

section 5209 “by making certain false entries upon the certificate of deposit register of the People’s National Bank of Newark, Ohio,” the plaintiff in error then being an officer of said bank, to wit, teller. This is the broad charge.

The details follow — that Hoover had been the cashier of the bank, and had unlawfully appropriated more than $30,000 of its funds; that, to cover up this shortage, the plaintiff in error (then teller) and Hoover entered into a conspiracy to make certain false entries in the certificate of deposit register; the plaintiff in error to admit Hoover into the bank outside of banking hours, lay before him the register, and Hoover to stamp or mark the false entries. It is distinctly averred that it was a part of the conspiracy agreed to by both that the false entries should be made.

In criminal as in civil law, the maxim, “Qui facit per alium facit per se,” is applicable. To violate

section 5209, an officer of a bank does not have to make the false entry with his own hand. It is enough if he cause it to be made — if another make it by his direction. U. S. v. Harper (C. C.) 33 Fed. 471, 480. In the present case, not only were the entries made by the agreement and direction of the plaintiff in error, but in his presence and with his approval and assistance. He was a trusted officer of the bank, having access to its vault and books, and charged with a duty respecting them. Cognizant of Hoover’s defalcation, he conspired with him to cover it up.

To falsify the books, he took Hoover to the bank outside of banking hours, laid the books before him, and stood by while the false entries were made. It was as if he opened the book, and Hoover applied the stamp. Done for a common purpose, the act of each was the act of the other. As an instrumentality in carrying out the conspiracy, we can no more separate Hoover from the plaintiff in error than we can the stamp which Hoover held from the hand which applied it. The fact that Hoover could not violate

section 5209 by personally making a false entry did not and could not serve to exempt the plaintiff in error from responsibility under that

section for Hoover’s act, when, by reason of the conspiracy, it became and was his own. The judgment of the lower court is affirmed.