UNITED "STATES V; :y'{)(}RHEES.
143
UNITED SUTESV.VOORHEES.
(Oz'rcui' Oourt, D. New Jersey. 1.
1881.)
NATIONAL BANX-INTENT TO DEFRAUD-STATl!TES-CONS'IRUCTION-PmiOTUA_ TION.
Under section 5209 of the Revised Statutes of the United States, an intent to defraud the association, or othel' compi\lly or person, is an essential element of the crime in every case. The words, " with intent in either case to injure or defraud," etc., apply as well to embezzlement, etc., of tho funds, as to the making false entries in the bOdks. The punctuation of a statute is not made to be relied on, and must be disregarded if it requires a construction which is repugnant to a sense of
This was, a motion to quash the indictment found against the defendant, as president of the First National Bank of Hackensack, under section 5209 of the Revised Statutes. The first count charges that the defendant did embezzle, abstract, and wilfully misapply cerand credits of the bank of the value of $5,000. tain The second is in the same form; except that itspecifies the particular stocks abstracted. Neither count alleges any intent. It 'was moved to quash the· first count because it was too general in its terms, and both counts beoause no intent is alleged. The se,otion is as follows: "Sec. 5209. Every president, difectot, cashier, teller, clerk, or agent of any association, who embezzles, abstracts; or'Wilfully misapplies any of the funds, or credits of the associati{)ll; Or Who, without authority from the directors, issues or puts ir cirCUlation any of the n,otes of the association; 9]: 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,' jUdgnient, or decree; or who makes any false entry in any book, report,or statement to the association, with intent, in either case, to Injure or defraud the association or any other com'pany, body politic or corpprate, or any individual person, or t() deceive any .{)fficer 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 offi'cer,' clerk, or agent in any violation of this section,-shall be deemed guilty!)f a misdemeanor, and shall be imprisoned not less than five years nor more than ten."
Joseph D. Bedle, for the motion. A'. Q. Keasbey, U. S. Atty., contra. McKENNA:N, C. J., announced theopinion'of the count. Hesaid that as to the first count the object of more specific allegations was to give the defendant full and fair information as to the charge, and to be a bar against another prosecution. It has been usual in this district to hold indictments like this, in the words of the statute, to
144:
FEDERAL REPORTER.
be good, and the object of more definite statements can always be reached by an order for a bill of particulars. As to the second count, it is not subject to this objection, but specifies the funds abstracted. These objections must, therefore, be overruled. The other objection applies to both counts. It relates to the want of allegation of intent. It is urged that the punctul.\tion of the statute shows that as to the first three offences stated, of wh.ich the charge in the indictment is one, the intent referred to in the section was not applied, but that it applies only to the last offence of false entries in any book, report or statement. Congress may provide that acts of this character may be punished without allegation or proof of criminal intent, if such provision is clear the courts must enforce them; but if the vision is repugnant to the sense of justice, and the offence is ma-de very highly penal, as in this case, courts are disposed to givE\ effect to any fair doubt as to the intention. If it were not for the punctuation, On which the district attorney has laid so much stress, there would be no doubt that the intent mentioned would apply to all the offences mentioned j but in a criminal case, where much is to be allowed in favor of liberty, it is unsafe to rely on a mere matter of pnnctuation. If these offences were sepaonly by commas there would be no doubt that the intent with which the section closes would apply to all its divisions. But we think that, as it stands, the fair construction of the act,and the latter part of the section which provides that anyone who aids or abets an officer in doing any of the acts with like intent shall be similarly punished, must be to make it necessary to allege and prove the intent as to all. It cannot be supposed that the legislature intended to require more proof against the abettor than was required against the principal; and this part of the statute makes it necessary to construe the preceding part in such a way as to apply the intent to all of the offences, notwithstanding the punctuation of the sentences. Upon these grounds the indictment must be quashed. Judge Nixon concurred in the result, and said that while the statnte would bear both constructions, yet, in a criminal case, where a. minimum penalty of five years is inflicted, the most lenient and mer. ciful construction should be adopted.-[New Jersey Law Journal.
FISCHEB V. DAUDISDAL.
145
FISCHER
v.
DAUDISTA.L.· April
(Circuit Court, E. D. Pennsylvania.
16, 1881.)
A United States collector of customs cannot, in a foreign attachment proceeding in a state court, be made garnishee with respect to goods of the defendant held for duties; and if he is served with a writ of attachment in such proceeding the service will be set aside. 2. REMOVAL OF CAUSES-COLLECTOR OF Cus'rOMs SERVED WITH ATTACHMENT.
The collector may, if served with such attachment, remove the suit to the United States circuit court, under section 643 of the Revised Statutes.
Motion to remand case to state court, and motion to quash writ of foreign attachment: , This was a suit of foreign brought in a state court by Frederick Fischer against Philip Daudistal. By an indorsement on the writ the sheriff Was directed to attach the goods and chattels of defendant in the possession of the Red Star Line, (Peter Wright & Sons, agents,) the Pennsylvania Railroad Company, and John F. Hartranft, collector of the port of Philadelphia. The sheriff returned that he had attached as commanded and summoned as garnishees the Red Star Line, the Pennsylvania Railroad Company, and John F. Hartranft, collector of the port of Philadelphia. Subsequently, in same suit, the plaintiff filed a petition setting forth that under the writ of foreign attachment the sheriff had seized, on tbe wharf of the Red Star Line, 14 casks of wine imported from Europe by, and consigned to, the defendant, subject to claims for duties payable to the United States; that the customs officers had taken possession of the wine and stored it in the bonded warehouse; tbat plaintiff, as attaching creditor, had tendered to John F. Hartranft, collector of the port of Philadelphia, the duties payable on said wine, and had requested him to receive the same and deliver up the goods to the sheriff, but that he refused so to do. Plaintiff prayed for a rule on the collector to show cause why he sbould not receive the duties and surrender the goods into the custody of the court. A rule having been granted in accordance with this prayer, John F. Hartranft, the collector, obtained a aertiorari from the United States circuit court to remove the record to that court. The record was duly cert'ified, whereupon plaintiff moved to remand, and the collector moved to quash the writ of attachment as to bim.
These motions were argued before MoKENNAN, O. J., and D. J. Lewin W. Barringer, for plaintiff.
BUTLEB,
This suit is not brought against the collector, and he is not a party defendalit. As garnishee he is only collaterally interested, and cannot remove the suit. Part of a controversy only cannot be removed. Hervey v. Rail1'oad 00. 7 Biss. 103. The title to tbe property was in the consignee, and the pri.Reported by Frank P. Prichard, Esq., of the PbiladelpWa'!illt.
v.9,no.3-10