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Peck v. United States

April 7, 1933


Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.

Author: Evans

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge.

Appellant includes in his assignments of error attacks on the sufficiency of the indictment, the rulings of the court excluding evidence by him offered, and the sufficiency of evidence to support the conviction.

Supplementing his criticism of the order of the court overruling his demurrer to the indictment, appellant contends that the court should at least have required the Government to have furnished him with a bill of particulars.

Stripped of repetition and unnecessary legal verbiage, each count of the indictment stated that appellant, while acting as president of the First National Bank of Palatine, and "with intent to injure and defraud" this member bank of the Federal Reserve system, "unlawfully, willfully, knowingly and feloniously did then and there embezzle a large sum of money * * * (the further particulars whereof being to the grand jurors unknown)"; which money, it is alleged, was then and there the bank's property and which came into the possession, care, custody, and control of appellant as its president and by virtue of his fiduciary relationship to said bank. One count fixed the amount embezzled at $4,500 and the date as August 16, 1929. The other count fixed the amount embezzled at $20,665.50 and the date, September 17, 1929.

Appellant argues that the indictment failed to allege facts necessary to bring the case within the requirements of the statute, and that it failed to inform him with sufficient particularity of the details of the offense with which he was charged to enable him to intelligently prepare for trial.

With appellant's contentions in regard to the sufficiency of the indictment, we can not agree. The indictment charged the offense in the language of the statute (section 592, title 12, U.S.C.) and contained further allegations showing the fiduciary relationship which existed, etc.

The word "embezzle," as used in this section, has a well defined and well understood meaning. To say that appellant embezzled moneys or property of the bank was to charge him with having converted to his own use moneys or property which had been entrusted to him or had come into his possession when he occupied towards the bank a fiduciary relationship. U.S. v. Britton, 107 U.S. 655, 669, 2 S. Ct. 512, 27 L. Ed. 520; Batchelor v. U.S., 156 U.S. 426, 429, 15 S. Ct. 446, 39 L. Ed. 478; U.S. v. Mason (C.C.) 177 F. 552, 558; U.S. v. Harper (C.C.) 33 F. 471, 474; State v. Hudson, 93 W. Va. 435, 117 S.E. 122; People v. O'Farrell, 247 Ill. 44, 93 N.E. 136; Teston v. State, 50 Fla. 137, 138, 39 So. 787.

Where the crime defined by the statute is as specific as it is here, it is sufficient if the indictment charges appellant with its commission in the language of the statute. Jelke v. U.S. (C.C.A.) 255 F. 264, 275. The rule was there stated as follows:

"An indictment is generally sufficient which charges a statutory crime substantially in the words of the statute, except in such cases where other precedents have been firmly established in analogous offenses at common law, or where such a charge would not fairly inform the accused of the nature of the charge preferred against him."*fn1

In support of his attack on the indictment because of its failure to describe with particularity the property embezzled, appellant, relying upon the language in Moore v. U.S., 160 U.S. 268, 16 S. Ct. 294, 40 L. Ed. 422, argues that an indictment is fatally insufficient which describes the property as a specific sum of money.

Without determining whether the indictment would be fatally defective if it merely charged the embezzlement of "a large sum of money * * * to wit, the sum of $4,500.00," it is sufficient answer to this argument to point out that the indictment, in addition to describing the property as quoted immediately above, also alleges "a further and more particular description thereof being to the grand jurors unknown." This added allegation, under numerous authorities, successfully avoids attack on the indictment for fatal weakness in the respect just noted.*fn2

Bill of Particulars. Such an indictment as we are here considering, while good as against demurrer or a motion to quash, should, however, be supported by a bill of particulars if the defendant requests one. In the instant case a bill of particulars was requested by appellant and refused by the court. This, it seems to us, was an abuse of discretion. Merely to charge an officer of a bank with having embezzled $4,500 would not always inform him of the transaction with sufficient particularity to permit him to prepare properly for trial. True, the date of the embezzlement stated in the indictment helped to identify the transaction upon which the charge of ...

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