CHADWICK v. UNITED STATES, 141 F. 225

LURTON, Circuit Judge. The plaintiff in error, Mrs. Cassie B. Chadwick, was indicted under

section 5400, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3656], for conspiring with other persons to violate

section 5208, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3497]. Excluding the counts withdrawn from the consideration of the jury, she was indicted-and convicted upon seven separate counts. One of these charged her with conspiring with C. T. Beckwith, president of the Citizens’ National Bank of Oberlin, Ohio, a national banking association, organized under the laws of the United States and then carrying on a banking business at Oberlin, Ohio, to commit an offense against the United States, to wit, to violate

section 5208 of the Revised Statutes of the United States, by unlawfully and willfully certifying a certain check, drawn upon the said bank by the said Cassie B. Chadwick for the sum of $15,000 at a time when the said Cassie B. Chadwick would not have on deposit with the said bank an amount of money equal to the amount so to be specified in such check. The other counts charged separate conspiracies with A. T. Spear, cashier of the same bank, to violate the same

section of the Revised Statutes by the unlawful certification of six other checks to be drawn against the same bank and certified at a time when the drawer had no funds on deposit. The judgment of the court was upon each of the seven counts, and that the term of imprisonment under each should be successive and cumulative, the punishment under one count to begin when that under the preceeding count should end. Many errors have been assigned. These will be taken up in groups rather than singly, and in such order as shall seem most convenient. 1.

A motion to quash the indictment upon the ground of the admission before the grand jury of a statement made by C. T. Beckwith, one of the persons with whom the plaintiff is charged to have conspired, the statement, as recited in the motion, consisting in a narration or confession made by Beckwith, in absence of Mrs. Chadwick and after her arrest, upon the charges embraced in the indictment and not in furtherance of any alleged conspiracy.

The motion itself was reduced to writing, and recites, in a general way, the nature of the alleged illegal evidence so alleged to have been submitted to the grand jury as evidence for their consideration upon the indictment sought against Mrs. Chadwick, and is sworn to by her. This motion and affidavit is insufficient upon its face. It does not aver that the grand jury had before it no other evidence than that alleged to have been incompetent; but only that the grand jury heard and received the alleged hearsay declarations of C. T. Beckwith.

We are aware of no rule of law which would nullify the action of a grand jury merely because as a part of the case they received improper or incompetent evidence. We are not prepared to say that an indictment found wholly upon illegal evidence would not be as invalid as one based upon no evidence at all, the matter not being one which may be found exclusively upon the knowledge of the grand jurors. 10 Ency. Pl. & Pr. 395; People v. Brickner (O. & T.) 15 N. Y. Supp. 528; U. S. v. Coolidge, 2 Gall. 364, Fed. Cas. No. 14,-858.

But an inquiry into the weight of the evidence upon which a grand jury acted is quite irrelevant and incompatible with the secrecy which should protect the ordinary conduct of such an inquisitorial body.

The mere fact that illegal evidence was heard, if there was any substantial competent evidence upon which that body might lawfully base their indictment and a motion and affidavit based upon an allegation that the grand jury received and considered an alleged statement, narrative, or confession which was in the nature of hearsay evidence, is not enough to justify the setting aside of an indictment in the absence of averment or evidence that the objectionable evidence was the only evidence material to the subject. Hope v. People, 83 N. Y. 418, 38 Am. Rep. 460; Bloomer v. State, 3 Sneed, 69; State v.

Tucker, 20 Iowa, 508; State v. Logan, 1 Nev. 509; People v. Lauder, 82 Mich. 115,46 N. W. 956; Jones v. State, 81 Ala. 79, 1 South, 32; State v. Bunger, 14 La. Ann. 465. But another and equally fatal objection is that in general a motion to quash is addressed to the sound discretion of the trial judge, and is not the subject of exception. U. S. v. Rosenberg, 7 Wall, 580, 19 L. Ed. 263; Logan v. U. S., 144 U. S. 268, 282, 12 Sup. Ct. 617, 36 L. Ed. 429.

This motion, it appears from a journál entry, came on to be heard upon affidavits, and upon a consideration thereof this entry recites that the court found and decided that the alleged confession of C. T. Beckwith was not used by the grand jury while considering the indictment preferred against Mrs. Chadwick, nor treated or received as evidence upon which they might act, but was read to the members of the jury after the finding of the indictment by one of their number as a matter of curiosity.

The evidence thus submitted to the court upon this motion has not been made a part of the bill of exceptions, and we must accept the ruling of the court as not reviewable. 2. In many ways it was insisted that the indictment charged no offense because it was said Mrs.,, Chadwick was not an agent or officer of the Oberlin bank, and was therefore legally incapable of certifying: the check of a drawer when there was no money on deposit to meet such check. Upon this assumption it is insisted that she could not be-legally punished for conspiring with another who was capable of doing the act which she could not do.

Subject to the limitation that the-object of the conspiracy must be to violate some law of the United-States, and that some overt act must be done “by one or more of such, parties” to carry out the agreement, we can discover no distinction between a conspiracy indictable at the common law and one cognizable-under

section 5400, Rev. St. There are certain offenses in which a concert of action between two persons is logically necessary to the-completion of the crime; that is, crime which cannot take place without concert. Among such kind of offenses Mr. Wharton mentions adultery, bigamy, incest, and dueling. “Therefore,” says Mr.

Wharton,, “when to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character as that it is aggravated by a plurality of agents, cannot be maintained. * * * We have,” he says, “the well-known distinction between concursus necessarius and concursus facultativus—in the latter of which the accession of a second agent to-the offense is an element added to its conception; in the former of which the participation of two agents is essential to its conception; and from this it follows that conspiracy, the gist of which is combination, added to crime, does not lie for concursus necessarius.” 2 WhartonCrim.

Taw, § 1339. The case of United States v. Deitrich (C. C.) 126 Fed. 664, has-been much cited and relied upon by the counsel for Mrs. Chadwick. The case affords an illustration of the proper application of the principle referred to by Mr. Wharton, and is broadly distinguishable from that now under consideration. Senator Deitrich, of Nebraska, and Jacob Fisher, were indicted under

section 5400 for conspiring to-violate

section 1781, Rev. St. by the said Dietrich, being a senator in the Congress, agreeing, corruptly and unlawfully, to receive a ’bribe for aiding and procuring the appointment of the said Fisher as Postmaster, and the said Jacob Fisher by corruptly and unlawfully agreeing to give to Dietrich a bribe for procuring and aiding to procure his appointment to said office of Postmaster. The concurrent acts of two persons were essential to the offense which it was the object of the conspiracy to commit. Dietrich could not agree to receive a bribe unless some other should agree to give him one. Under

section 1781, Rev. St. [U. S. Comp. St. 1901, p. 1212], the act of “agreeing” to receive such a bribe was a substantive offense, and the act of agreeing to give such a bribe another. Concert of action was, therefore, essential to the violation of

section 1781, charged as the purpose of the conspiracy. To violate

section 5208, a plurality of guilty agents is not necessary. A check may be certified when the drawer has no funds upon deposit, and the officer certifying it be guilty of violating the law which forbids that act without the guilty complicity of the drawer or any other person. In short, the very fact that Mrs. Chadwick could not be guilty •of any violation of

section 5208, as contended by her counsel, takes the ■case outside of the rule which forbids an indictment for conspiracy where a plurality of agents is logically necessary to complete the crime which it was the object of the conspiracy to commit. It is sufficient ■if any one of the parties to a conspiracy is legally capable of committing the offense, although the other parties may not have been. Scott v. U. S., 130 Fed. 429, 64 C. C. A. 631; 2.Wharton, Cr. Law, §§ 1340a and 1388; 1 Bishop, Cr. Law, 627-629, and § 432; U. S. v. Bayer, 4 Dill. 407, Fed. Cas. No. 14,547; State v. Sprague, 4 R. I. 257; Boggus v. State, 34 Ga. 275. In Scott v. U. S. cited above, the conspiracy was to violate

section 5209 [U. S. Comp. St. 1901, p. 3497] by causing certain false entries to be made upon the books of the bank. Only one ■of the conspirators was an officer of the bank. The overt act charged was the making of the false entries by the hand of the defendant, who was not an agent, servant, employé, or officer of the bank. But it was also averred that both defendants participated in the act and that the entries were in law made by the bank officer through the hand of another—his co-conspirator.' This court held the indictment good.

The errors assigned to the present indictment based upon the objection we have been considering are not well taken. 3. Where two or more criminal acts are connected together, or are transactions of the same class of crime or offense, they may be joined in one indictment in separate counts, instead of having several indictments. Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720]. When this is done, the court, if it sees that the defense of the accused may be seriously embarrassed, may require the government to elect upon which of the counts it will proceed.

But, even when there is a joinder of felonies, the court is not under any absolute duty to require an election upon motion of the defendant. This question of election must depend upon the circumstances of the particular case, and is one requiring the exercise of a considerable degree of discretion by the trial judge.

If it does not appear that any substantial right of the defendant may be prejudiced by the submission to the same jury of more than one distinct accusation according to the orderly methods of a court of justice, it should not compel an election and thus cause repeated trials of offenses of the same class. Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208. There was no error in the joinder of the several offenses charged in this indictment. They were crimes of the same class, and the evidence relating to each substantially the same.

We do not see from anything which appears in this case that the plaintiff in error was prejudiced or embarrassed by the trial of the several counts before the same jury. There was no error in denying the motion to elect. 4. Mrs. Chadwick’s letters. Two letters were offered in evidence by the district attorney upon evidence that they were in the handwriting of Mrs. Chadwick. They were received over the objection ■of the defendant. Subsequently a motion to take them from the jury was denied. These letters were as follows: “Cleveland, October 2, PWiR. “My Dear Mr. Spear and Beckwith: I must again thank you and Mr.

B. for your great kindness to—I gave the check to Mr. Pay, and he said he would go and see his people to-morrow morning, and if they would extend the paper he would give me my note. I just said, a deal that would go through your bank in connection with the college. The check was given in that connection. So you need only to listen to him. I don’t think he will ask any questions. I don’t want him to be in possession of any facts, rather I don’t want Mr. Wurst to be. I think best not to. It will only be necessary for you to say that you will renew the paper.

He said he was going to take the check up and show it to you, and ask you to renew their paper on the strength of the check not being payable before November 1st. Hoping this will pass of all safe, and with many thanks to you both. “Very gratefully, C. L. Chadwick.” “P. S. He is going first thing in the a. m. He remarked that you would be surprised to see the check in his hands, so you better be surprised; if you do not say it, look it.” “My Dear Mr. Spear: Could we arrange this matter of Mr. W. and P. in this way: They don’t even know that I have ever met you or done any business with you.

I think I might say I was going to make a loan through your bank in connection with the college. Now, this he would not repeat because he wants to act for me in every way he can in the future. I would not tell him anything that would ever show that we had ever done any business. I would ask you to certify my check dated October 10th, and this would get the matter out of their hands. I could then get the funds on the goods in the East to meet the check and you would not be anything out, so if you will draw the check for $15,000 and certify it on your cheeks I can sign it, and he will be none the wiser.

Now I will pay you and Mr. B. well for this favor, and am sure it will be safe, and you need not let them know anything about our matters. There will be nothing for your folks to say, only that the check will be good on that date. And if they ask you for extension for ten days, you can agree to it, and do hope you can do this. Please do not be afraid to do this, because I will be most careful over this. I think by advice of my attorney I am myself going to be dble to do something which will be of great interest to us all. He will prepare the papers to-day. I was sick and did not get it arranged yesterday.

I send you also my note dated to cover certified check for the 10th, and a small commission, for your kindness. Please phone me if you can do this, it is important. If you do this I save, what I save I give you. “Very truly, C. L. C. “Postscript. I mean that I will tell them that I had a deed with the college that will pass through your bank, which is true for I have had, and if they help me further then it will be through you. “Yours, B.” There was no direct evidence that these letters were ever sent to or received by either Beckwith or Spear.

Beckwith was president, and Spear cashier, of the Citizens’ National Bank at Oberlin, Ohio, and are the same persons with whom Mrs. Chadwick is charged to have conspired to violate

section 5208, Rev. St., by certifying her checks drawn upon that bank at a time when she should have no money upon deposit'to meet same. It is now very earnestly insisted that, in the absence of evidence of transmission or delivery, such documents are not competent as either confessions or admissions, not being declarations made to another. Soliloquy, say counsel, cannot prejudice the speaker, because there is no vilification of one’s self when not said or written to another. But a self-charging admission does not lose all of its evidential force because it is not transmitted or delivered to another.

Books of account afford evidence against all who are instrumental in their being kept or have right of access to them, although intended only for the inspection of those who make them. It is true that in respect of such books of account the case is somewhat different from that presented by an admission in a private diary or an unsent letter or a memorandum intended only for the personal use of the maker.

The custom and usage of merchants has made the keeping of correct books of account a matter of business necessity, and the presumption of correctness of entries perhaps extends beyond those which are self-charging. The bottom principle is, however, the same in each instance, namely, that one will not write or say that which is contrary to one’s interest, unless it be true.

To put it in another form, that which one admits to be true, whether in the privacy of his private journal or by a memorandum intended to aid his own memory only or in a letter which he keeps, instead of transmitting to the one addressed, may reasonably be presumed to be true until explained or rebutted. That this kind of an admission would not be conclusive, not being intended to influence the conduct of another, but subject to explanation, does not affect its admissibility as evidence of the truth of any admissions made by the author of the document or utterance. In Toner v.

Taggart, 5 Bin. (Pa.) 490, a memorandum in handwriting of deceased and found upon his person after death was held admissible as an admission of the indebtedness of the deceased to the plaintiff. In Medway v. U. S., 6 C. Cl. (U. S.) 421, the issue was as to the loyalty of Mrs. Medway. A letter written by her and addressed to Mr. Davis, president of the Southern Confederacy, but never sent, was held admissible. The letter, never having been transmitted, was held not to be an overt act of aid and comfort to the cause of the Confederacy.

But it contained an admission that the writer had theretofore written and transmitted a similar letter tendering aid and comfort to Mr. Davis in his official character, and this admission was regarded as an admission that Mrs. Medway had theretofore, by the writing and transmission of such letter, aided, comforted, and abetted the Rebellion. In People v. Robinson, 19 Cal. 40, the talk of a person in his sleep was held very properly to be inadmissible as evidence against him upon the ground of unconsciousness. But in State v. Morgan, 35 W. Va. 260, 266, 13 S.

E. 385, the ejaculations or soliloquy of a woman charged with murder, made in the nighttime while upon her couch, were held competent as admissions. The question as to their value was left to the jury. Upon this subject Brannon, J., said: “It is with them to say whether it was made in sleep, and was therefore worthless, or whether, though in sleep, it was but the divulgence of truth, springing from guilt which rested heavy upon the soul and broke forth through voice and lips, the half conscious man revealing secrets indelibly impressed on the memory, which if fully awake, he would fain have suppressed.

It was with the jury to say whether she was fully awake, and forgot herself, and in this soliloquy spoke out the truth. The operation of the human mind is an enigma, and its expressions in the unconsciousness of sleep are frequently vagaries and fictions, but sometimes born of reality.” If from other evidence the jury should be satisfied that there was a conspiracy to which either Beckwith or Spear were parties to bring about the violation of

section 5208, Rev. St., by the unlawful certification of Mrs. Chadwick’s checks, these letters would tend to show that she was a party to such conspiracy. A general objection to their ■competency or evidence or a general motion to withdraw them from the jury would be manifestly bad. The extent to which they were competent will now be considered under an exception taken to the charge of the court relating to the matter.

Upon the evidential character of these letters the court said in its charge: “Two papers, purporting to their face to be letters from the defendant, one to Spear and Beckwith, and one to Spear, have been offered in evidence; a witness having testified that they are in the defendant’s handwriting. The direct evidence is silent as to whether they were ever received by Beckwith or Spear; but, if you find that they are in the handwriting of the defendant, you will give to them such

interpretation and force, as under all the surrounding circumstances, you think them fairly entitled to. They may, if in your judgment they are entitled to such an

interpretation, furnish some information as to the kinds of transactions carried on between the defendant and Beckwith and Spear, and whether the relation which she and they sustained to the bank were such as to tend to support the contention of the government that the defendant and Spear and Beckwith were engaged in a conspiracy to violate the law respecting the certification of checks.” This was duly excepted to, but no request for any charge in respect •of these letters was made, except a request that the letters should be withdrawn from the jury as incompetent for any purpose.

The undated letter addressed to Mr. Spear was inferably written before the one dated October 2, 1903. That it refers to a check of October 10th, which she wishes certified, is not significant that its date was after October 10th, for her reference is most likely to a check dated ahead ■or to be'dated ahead. A check for $15,000, dated November 1, 1903, payable to order of Henry Wurst and indorsed to W. L. Fay, is in ■evidence. This check was certified October 2, 1903, and is stamped paid November 1, 1903.

This is evidently one of the checks referred to in both letters; that of October 2d acknowledging receipt of the certified check and showing that she had given it to Mr. Fay. There' was also in evidence other checks bearing dates prior to October 2d, and some of later date which were also certified by either Beckwith or Spear.

There was also evidence from which the jury might infer that neither at the time of the writing of these letters or at the time of the certification of the check dated November 1st, and certified October 2d, nor at the time of the certification of any of the other checks in evidence, the subject of one or other of the several counts upon which the defendant was convicted, did she have upon deposit in the Oberlin bank the funds to meet any one of such checks. That these letters tend to show Mrs. Chadwick’s purpose to bring about an unlawful violation of

section 5208, Rev. St. through an arrangement or agreement with either Beckwith or Spear, or both, and that their consent to her scheme was to be induced by her assurances of safety and promises of reward, there can be no doubt. If, therefore, there was any conspiracy between either Spear or Beckwith and some other person to violate the certification statute in respect of checks to be drawn or which had been drawn by Mrs. Chadwick, the admissions found in these letters point to Mrs. Chadwick herself as the other party to the conspiracy and establish her unlawful intent.

The letters are also an admission of the nature of her relations to the persons to whom the letters are addressed. That an unreceived letter is not evidence against the person addressed is, of course, elementary These letters by themselves would be of no weight as against either Beckwith or Spear. Upon the other hand, if independently of the letters the fact of a conspiracy is established as existing at the time they were penned, there could be no doubt of the admissibility of these documents as declarations or admissions by one in furtherance of the conspiracy, and therefore competent against all.

In general terms the jury were so instructed. The fact of the existence of a conspiracy is a fact which is seldom capable of express or direct proof. But evidence of an express agreement to violate the certification statute was not necessary. Evidence of facts and circumstances from which the existence of a preconcerted plan might be inferred is enough. And so, too, the facts and circumstances from which a conspiracy is to be inferred may be and often must be shown singly. Their collocation is for the jury, and the order in which they may be shown is generally one in the discretion of the court.

In Wharton upon Criminal Eaw (10th Ed.) 1398, it is said: “The actual fact of conspiring may be inferred, as has been said, from circumstances, and the concurring conduct of the defendants need not be directly proved. Any joint action on a material point, or collocation of independent but co-operative acts, by persons closely associated with each other, is held to be sufficient to enable the jury to infer concurrence of sentiment; and one competent witness will suffice to prove the co-operation of any individual conspirator.

If, therefore, it appear that two or more persons, acting in concert, are apparently pursuing the same object, often by the same means, one performing part of

an act, and the other completing it, for the attainment of the object, the jury may draw the conclusion that there is a conspiracy.” In Reilley v. U. S., 106 Eed, 896, 46 C. C. A. 25, 35, this court said: “It is also urged that the evidence did not justify the verdict, in that there was no proof of conspiracy to do what was done. As has been often remarked, it is not necessary that direct evidence of a formal agreement should be given in such cases.

If the evidence of the separate details of the transaction as it was carried out indicates with the requisite certainty the existence of a preconcerted plan and purpose, that is sufficient; and we think the evidence was such as to warrant the verdict.” The fact of the accession of Spear and Beckwith to the scheme entertained by Mrs. Chadwick, as indicated in these letters, was, like all other facts needed to complete the evidence of a conspiracy, a fact which might be shown by indirect or circumstantial evidence.

The business or social relation of the parties before and after the date of these letters; other acts of a similar character to that which Mrs. Chadwick had in mind to procure as shown by these documents; the state of her account with the bank of which Spear and Beckwith were officers; the fact, if it be so, that a check answering the description of the one which these letters show she intended to have certified or acknowledged having received—were all circumstances from which the jury might infer the accession of Beckwith and Spear to a scheme for the violation of

section 5208, Rev. St., similar to that divulged by these written admissions of the defendant.

Thiis the “interpretation and force” of the admissions in these letters would depend in large part upon the other facts and circumstances or as the court said to the jury “upon the surrounding circumstances.” These might be such as to justify an inference that these letters had in fact been received and acted upon by Beckwith and Spear, or that a concert of action similar to that admitted by these letters and for the purposes there shown, was inferable irrespective of the receipt of these particular communications between the parties.

The scope and evidential value of these documents was, therefore, dependent upon their being read in the light of all of the evidence in the case. This is what the learned court meant and what the jury as reasonable men of affairs must be regarded as having understood, when the court said that: “You will give them such

interpretation and force as, under all the circumstances, you think them fairly entitled to.” It would be a most unjustifiable and forced inference to interpret this instruction as giving a free rein to the jury.

Indeed, the following sentence seems to place a somewhat narrow limitation of their evidential value, as only furnishing “some information as to the kinds of transactions carried on between the defendant and Beckwith and Spear,” and “as throwing light upon the question of the relation which she 'and they sustained to the bank.” A limitation of the inferences to be drawn from these letters, when read in the light of all of the other facts and circumstances of the case as affording “some information” upon the kinds of transactions she and Beckwith and Spear were engaged in, and as to the relations which she and they sustained to the bank, is at least a limitation of which the plaintiff in error cannot complain. 5.

We have carefully examined the charge of the court in connéction with the other assignments of error based upon exceptions reserved. None of these are well taken, and none are of sufficient importance to require special attention. A number of special requests for further direction were denied.

One of these was the seventh, and reads as follows: “The defendant was not bound to know the rules of the bank or the law governing the officers of the bank with reference to certifying checks, and in the absence of such knowledge she could not be held to have conspired with the officers of the bank, if what she did was done in good faith, and without any criminal intention to do the unlawful act complained of.” Upon this matter of intent, the court said: “I am asked by the government to charge, and I do charge in this connection, that tlie jury is instructed, on the question of intent on the part of the defendant, that_ the law presumes that every person intends the natural and ordinary consequences of his acts.

Wrongful acts, knowingly or intentionally committed, cannot be justified on the ground of innocent intent. Ordinarily the intent with which a man does a criminal act is not proclaimed by him, and ordinarily there is no direct evidence from which the jury may be satisfied, from declarations of the criminal himself, as to what he intended when he did a certain act.

And this question of intent, like all other questions of fact, is solely for the jury to determine from the evidence in the case.” In reference to the defendant’s knowledge of the statute forbidding certification when the drawer had no funds upon deposit, the court said: “The claim is made by counsel for the defendant that there is no proof that the defendant had knowledge that the act of certifying the check, if done as claimed in the indictment, was in violation of the law.

On this point, I say to you, gentlemen, that a conspiracy cannot exist without a guilty intent being then present in the minds of the 'conspirators; but this does not mean that the parties must know that they are violating the statutes of the United States. The government is not required to prove, in order to sustain a verdict of guilty, that the parties knew that some statute forbade the acts they were performing.

If these acts of certifying cheeks, or any of them as charged in the indictment, were in fact violations of the law, the defendant is to be held guilty if she, as charged in the indictment, conspired with Beckwith or Spear in bringing about their certification; and the question of her knowledge or her ignorance of such acts being contrary to law is not a fact which you have a right to consider.

The only question for you to pass upon is whether the defendant violated the law; not whether she had any knowledge that she was violating the law.” We think there was no error in the denial of the request as preferred nor in the charge as given. The indictment is for a statutory conspiracy to violate a penal statute of the United States. Knowledge that the act which it was the object of the conspiracy to do would be in violation of the law is imputed and need not be proven. Neither do we understand that in courts of the United States the fact that the object of the conspiracy was to do

an act which is only mala prohibita requires evidence of knowledge of the unlawfulness of the act purposed by the conspirators. The conspiracy itself is one created by statute and is made out by evidence that its object was to perpetrate some offense against the United States. Undoubtedly something more than a mere certification in excess of a deposit is necessary to make the offense punishable under

section 5440 [U. S- Comp. St. 1901, p. 3676] and Act July 12, 1882, c. 290, 22 Stat. 166 [U. S. Comp. St. 1901, p. 3497]. A wrongful intent is of the essence of the matter, and the act of certification must be willful and charged as such. There must be an evil design, á wrongful purpose. Therefore willful ignorance as to whether the drawer had money on deposit or not or knowledge that she did not must be shown. Potter v. U. S., 155 U. S. 438, 446, 15 Sup. Ct. 144, 39 L. Ed. 214; Spurr v. U. S., 174 U. S. 728, 735, 19 Sup. Ct. 812, 43 L. Ed. 1150.

But knowledge of the statute forbidding a certification in excess of a deposit is imputed. An unlawful or wrongful intent may be implied from the intentional doing of an unlawful act. Agnew v. U. S., 165 U. S. 36, 49, 50, 53, 17 Sup. Ct. 235, 41 E. Ed. 624. In Spurr v. U. S., cited above, the court said: “If an officer certifies a check with the intent that the drawer shall obtain so much money out of the bank when he has none there, such officer not only certifies unlawfully, but the special intent to violate the statute may be imputed.

And so evil design may be presumed if the officer purposely keeps himself in ignorance of whether the drawer has money in the bank or not.” 6. Among the names duly drawn from the box as one of the venire from which a jury was to be selected was that of Butler Crane. In answer to this name, when called by the clerk, one Bentley F. Crane appeared, and upon examination as to his qualifications was accepted as a juror and served as such. Upon the ground that Bentley F.

Crane had not been drawn as a juror in the mode required by law, but had appeared and answered to the name of Butler Crane, the defendant, after verdict, moved for a new trial, and the refusal of the court to grant a new trial upon this ground is now assigned as error. The bill of exceptions includes the exhibits and affidavits bearing upon this matter, and from this evidence we are satisfied that the juror intended to be summoned and who was actually notified to appear was Bentley F. Crane. There was no such person as Butler Crane, and when Bentley F.

Crane was notified to appear he assumed that he was the person intended and acted in perfect good faith in assuming that it was simply a case of misnomer. He was a farmer in good repute residing at Shalersville, Portage county, which was the address of the “Butler Crane” drawn from the jury box, and knew that there was no Butler Crane in that township or county. He answered to the name of Butler Crane when called as one of the venire tendered the defendant, but says that as Mr. Dawley, one of the defendant’s counsel, was from his neighborhood and known to him, he assumed that Mr.

Dawley knew that his right name was “Bentley” and not “Butler.” The name was one of a number furnished the clerk of the court, at his request, by Judge Robertson, a state judge, residing in Portage county. Judge Robertson personally knew Bentley Crane and undertook to furnish his name. By either the clerical mistake of the judge’s stenographer or of the deputy clerk who transcribed the name from Judge Robertson’s list the name “Bentley” was written “Butler” upon the card which went into the jury box. In sound and appearance there is so much similarity as to easily account for the mistake.

Bentley Crane was qualified as a juror, was disinterested, and the only irregularity consists in this misnomer. It was not a case of“ the wrongful impersonation of a juror duly summoned by a stranger as in McGill v. State, 34 Ohio St. 228. There is no evidence of willful misconduct upon the part of any one in this matter. If counsel had examined the juror as to his name, the misnomer would have been discovered. This they did not do. It is said that counsel did not know that his name was Bentley Crane and had a right to presume his name was correctly transcribed upon the list of jurors furnished them.

We may assume this to be so, and also assume that, if there had been in fact a Butler Crane competent for jury service in this case, a serious question might arise if the defendant was misled into accepting one juror when they had reasonable ground for supposing she was securing another. But that is not this case. It affirmatively appears that there was no such person as Butler Crane, and that the juror intended to be summoned and actually summoned was the juror Bentley Crane. The defendant secured the juror she elected to accept, although his name was Bentley Crane, and not Butler Crane.

Under such circumstances the question, arising only upon a motion for a new trial, was one for the exercise of the sound discretion of the trial judge. If he was satisfied that no fraud was intended and no substantial right of the defendant had been prejudiced or embarrassed, he might well deny a new trial upon such a case. There is nothing better settled than that the denial of a new trial upon any ground which appeals to the discretion of the trial judge is not the subject of an exception nor assignable as error here. Moore v. U. S., 150 U. S. 57, 61, 14 Sup. Ct. 26, 37 L. Ed. 996; Blitz v. U. S., 153 U.

S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725. The question as presented upon this record seems to be quite within the range of the sound discretion of the trial judge, and in the absence of evidence of grave abuse is not the subject of review when presented only under an assignment of error in refusing a new trial. 7. The district attorney in his closing argument said, among other things: “Bedortba is dead; Beckwith is dead; two other directors are sick. A suspended bank—and do you know what that means? The widows, the orphans whose hopes of peace and prosperity in old age have been robbed from them.

Have you thought of what that means? The ambitions of youth whose all was there. The absolute necessity of the lives of men and comforts of men and women and children. All swept away. Death, sickness, and destruction in your path!” To this the defendant at the time objected, and then excepted. No ruling was made. The passage is severed from its context, but we can infer that the district attorney was endeavoring to impress the jury with the evil results which had followed from the unlawful conspiracy charged by the indictment.

There was evidence that Bedortha, a director of the Oberlin bank, was dead; that Beckwith, its president, was dead; that two other directors were sick; and that the bank had suspended. The inferences drawn from these facts may have been extravagant. But we do not understand it to be the province of a court to limit the arguments of counsel when they are based upon any evidence in the case.

There is a degree of liberty allowable to counsel, whether for the government or the accused, in respect to the line of argument they shall pursue and the inferences to be drawn from the evidence which a trial judge should respect until the facts of the case are overstepped or arguments used which plainly abuse the privilege.

But when facts not in evidence are stated to the jury, or arguments advanced plainly not justified by the evidence, and calculated to arouse prejudices incompatible with even-handed justice or an orderly course of procedure, it is the right and privilege of the counsel for the accused to object and ask the interference of the court and to except when the court denies the appeal. But to entitle the accused to a reversal when objection is made and the language not withdrawn it must appear that the matter objected to was plainly unwarranted and so improper as to be clearly injurious to the accused. Kellogg v. U.

S., 103 Fed. 200, 43 C. C. A. 179; Dunlop v. U S., 165 U. S. 498, 17 Sup. Ct. 375, 41 L. Ed. 799. There was enough in the facts proven for one purpose or another to warrant the counsel in referring to the facts stated as facts in the language complained of. The rest of the paragraph consists of inferences by which the counsel accounted for the facts or in a picture of the sorrow, distress, and ruin which are the ordinary consequences of a broken bank.

It cannot be seriously claimed that the argument and influence of counsel complained of were so grossly unwarranted and improper as to be palpably injurious to the accused. Unless this does appear, a reviewing court should not reverse upon such an assignment of error. People v. Ward, 105 Cal. 335, 340, 38 Pac. 945; Dimmick v. U. S. (C. C. A.) 135 Fed. 257, 270. Upon the motion for a new trial, objection was urged to certain other paragraphs in the closing argument of the district attorney.

A sample of one of the paragraphs complained of is the following: “Gentlemen, I say to you in my closing argument, in my closing words, as a final appeal to your judgment, your intelligence, your courage, that the evideuce in this case conclusively proves, beyond the existence of a reasonable doubt, the truth of the allegations in this indictment.

Proves that you have before you what 12 men may, in this country, have never had before them in all criminal history—a criminal of such conspicuous note—notorious and dangerous a character—from the evidence in the case—the fate of whom never was determined before by any jury in any court. You have the opportunity to do right to-day. You have also the opportunity to-day to do wrong. What you shall do rests with you, under the charge of the court, your conscience and your God. That is where it rests with me.

Whatever you may do, I feel that I have done, in my humble way, the best that I know, from the evidence in the case, to convict the most dangerous criminal known to human society to-day.” No objection or exception was taken to this or any other part of . the district attorney’s address to the jury, at the time or prior to the verdict, except a single paragraph heretofore set out in a foregoing part of this opinion. In the heat of argument counsel are sometimes led to make observations not justified by evidence and calculated to prejudice the accused.

But when this is the case it is.the duty of opposing counsel to promptly call the attention of the court to the matter and of the court to rule upon the objection and caution the jury and reprove counsel. In Dunlop v. U. S., 165 U. S. 487, 498, 17 Sup. Ct. 375, 41 L.

Ed. 799, when objection was made promptly to the language of counsel for the government in addressing the jury, the court ruled that it was improper and the language immediately withdrawn by counsel, which the court held to be a condonation of his error in making it'. “In such -cases,” said the court, “however, if the court interfere and counsel promptly withdraw the remark, the error will generally be deemed cured.

If every remark made by counsel outside of the testimony were ground for reversal, comparatively few verdicts would stand, since in the ardor of advocacy and in the excitement of trial even the most experienced of counsel are occasionally carried away by this temptation.” To same effect is case of Kellogg v. U. S., 103 Fed. 200, 43 C. C. A. 179, decided by this court. But here no objection was made and no complaint urged until upon motion for a' new trial.

Nothing is better settled than that the defendant who deems himself prejudiced by the language of counsel should promptly and publicly object and point out the language deemed improper and then take exception if the trial judge fail to condemn it. It is too late to predicate error upon the refusal of the trial judge to grant a new trial on account of a complaint made only after verdict and upon a motion for a new trial. Crumpton v. U. S., 138 U. S. 361, 11 Sup. Ct. 355, 34 E. Ed. 958; King v. State, 91 Tenn. 620, 642, 644, 20 S. W. 169; State v. Ward, 61 Vt. 153, 17 Atl. 483; Shelp v. U. S., 81 Fed. 694, 26 C. C.

A. 570; 12 Cyc. 585. In Crumpton v. U. S., cited above, the court said: “When the defendant’s counsel in a criminal case fails to at once call the attention of the court to remarks made by the prosecuting officer, which are supposed to be objectionable, and to request its interposition, and in case of refusal, to note an exception, an assignment of error in regard to them is untenable.” 8. Finally, it is urged that the court had no power to pronounce cumulative sentences. The defendant was tried and convicted upon seven distinct counts.

The crimes charged were of the same character, although each count charged a distinct and separate conspiracy to violate

section 5208 by the unlawful certification of distinct checks drawn by the defendant against the same bank. Separate indictments might have been returned and seven distinct trials might have been had or all of the indictments might have been tried before the same jury. Under convictions upon separate counts for distinct offenses of the same character sentence may be passed and judgment entered for a specified term of imprisonment upon each count, and each term may be consecutive and cumulative. It is not error to make one term of imprisonment to begin when another terminates.

If this is not so, there is no other mode in which an accused may be sentenced upon several convictions under several indictments or one indictment with two or more counts upon distinct offenses. The question has heretofore been before us and the power to impose cumulative sentences affirmed unanimously, the opinion of the court being by District Judge Clark. Howard v. United States, 75 Fed. 986, 21 C. C. A. 586, 34 U. R. A. 509. Cumulative sentences were affirmed, though the objection does not seem to have been distinctly considered by the Supreme Court, in Blitz v. U. S., 153 U. S. 308, 317, 14 Sup.

Ct. 924, 38 L. Ed. 725, in Re Henry, 123 U. S. 372, 8 Sup. Ct. 142, 31 L. Ed. 174, in Re Mills, 135 U. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107. and in Re De Bara, 179 U. S. 316, 21 Sup. Ct. 110, 45 L. Ed. 207. The conclusion we reach is that there is no reversible error, and the judgment of the court below is accordingly affirmed.