i FLICKINGER V. UNITED STATES. 7
43, along with two others, and because counts 51 and 52, upon which
there was a verdict of not guilty, covers two of the notes set forth 111
count 50 on which there was a verdict of guilty. An e><am1nat1on of
tl1e record shows that the forty—fifth count charges a nusapplication of
the proceeds of six Vehicle Vvhcel Club drafts. These six drafts were
separately covered by counts lil, #11, 1-2, and 43, upon which there was a
verdict of guilty, and by counts 39 éllltl —i l, upon which there was a ver-
dict of not guilty. The jury very properly, therefore, fou11d a verdict of
not guilty upon the forty—fifth count. The fifty—hrst and fifty-second
counts being based on two of the twelve notes covered by count 50, the
jury quite correctly brought in a verdict ot not guilty on them,
since the verdict of guilty on count 50 covered all twelve notes. In
doing this the jury followed the instructions of the court when it said:
"It will not be iicccssary for you to return verdicts of guilty both upon tho
counts based upon thc separate instruments and the counts where all are
joined in a single count."
\Ve hud nothing repugnant or inconsistent in the verdict.
Our attention 15 called in a general way to the refusal of the court to
give the special requests presented by the defense, and to certain por-
t1o11s of the charge as given. The requests which were proper and
pertinent were either given as requested or covered by the general
charge, and counsel has not l)C€1l able, in our opinion, to point out
any portion of the charge excepted to at the time which was erroneous.
The judgment is affirmed. ·
4 N()TE.·—The following are the opinion of Taylcr, District Judge, on de·
inurrcr to the indictment, and the cl1a1·;.:c to thc jury:
TAYLER, District Judge. The indictment in this case contains 52 counts.
The defendants have tiled a dcinnrrcr to all of thc co11nts of thc indictment. a1—
leging different gxronnds. according: to the character of each. All of the counts
are based on section 52oll of thc Revised Statutes of the United States [U. S.
mjomp. St. 1901, p. Ii-lI>T|. The first, sccond. and third counts charge the de-
fendant llays. president of the Gallon National Hank, with unlawfully issuing
and putting forth. as such otlicer. :1 certain certificate of deposit., without the
authority of the hoard of directors. with intent to injure and defraud the
bank, and charge the defendant Flickin;:cr with aiding Hlld abetting Hays i11
the sainc transaction. Counts $$2. 233. Ii;. ::5. and Iii} are of the same character
as 1, 2, and 3, except that bills of cxcliangc, instead of certificates of deposit,
were issued.
The claim is made by thc defendants that thc offcnsc is not described suf-
ticicntly, and that thc avcrinents of thc several counts do not constitute a
crime; and especial stress is laid upon the fact that it nowhere appears in
these counts how 2111}* inisapplication of funds ocenrrcil. or that the bank lost
any money by reason thereof. It is suilicient to say that thc allegations are
in the language of thc statute. Hllfl that they describe thc particular act which
is claimed to be unlawful. The general avcrnient that it was done with in—
tent to injure and defraud the bank is sufficient to complete the criininal act.
The demurrer objects to counts 11 to 16. inclusive, and to counts 37 to 45.
inclusive, which rclatc to the discount of notes and drafts hy the defendants:
the notes and drafts bein; unsecured, and the makers and indorscrs of thcm
l(1lOV\’11 to be insolvent. Uhjcctioii is matic that there is no avcrmcnt that
Hays discounted this paper without thc knowledge and consent of the board
of directors. I do not think this avcrincnt necessary, and it would not be
less criminal, done with the knowledge and consent of the board of directors, if
the defendants and the boa rd of directors did it under the circiiinstances which
the indictment avcrs existed in connection with the action of the defendants.