# Evans v. United States (153 U.S. 584)

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## Dissenting Opinion

    Field
United States Supreme Court
153 U.S. 584
Evans v. United States
This was an indictment against Nelson F. Evans, a director of a national banking association, for willful misapplication of its funds. A demurrer was overruled, and defendant convicted, and motions for a new trial and in arrest of judgment were denied. Defendant brought error.
Plaintiff in error, who was a director in the Spring Garden National Bank, was indicted for an alleged violation of Rev. St. § 5209, which reads as follows: 'Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstriacts, or wilfully misapplies any of the moneys, funds, or credits of the association; * * * with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, * * * and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.'
The indictment contained 146 counts, upon all of which, except 24, a nolle pros. was entered. A demurrer was filed to all these remaining counts, which was overuled. The defendant was then arraigned, pleaded not guilty, was put upon trial, and convicted upon all the 24 counts, and sentedced to five years' imprisonment. A motion for a new trial and in arrest of judgment being overruled, defendant sued out this writ, assigning as error the action of the court in overruling his demurrer, and in refusing to arrest the judgment on account of the insufficiency of the indictment. The case was originally argued in this court upon the sufficiency of all these counts, and a reargument subsequently ordered upon the eighth, nith, tenth, and fourteenth.
A copy of the eighth count, which was a representative one of its class, and, in its framework and structure, was similar to all the counts to which the attention of the court was called, is here given:
'(8) And the grand inquest aforesaid, inquiring as aforesaid, upon their respective oaths and affirmations aforesaid, to further present that heretofore, to wit, on the eighth day of May, A. D. 1891, the said Nelson F. Evans, yeoman, late of the district aforesaid, at the district aforesaid, and within the jurisdiction of this court, did knowingly, willfully, unlawfully, and fraudulently aid and abet one Harry H. Kennedy (the said Harry H. Kennedy being then and there cashier of a certain national banking association then and there known and designated as the Spring Garden National Bank, in the state of Pennsylvania, which said association had been theretofore created and organized under and by virtue of acts of congress in such case made and provided, and which said association was then and there acting and carrying on a banking business at Philadelphia, in the said district, under the acts of congress in such case made and provided), then and there to willfully misapply a certain large amount of the moneys, funds, and credits then and there belonging to the said national banking association for the use, benefit, and advantage of the said Nelson F. Evans, then and there with intent in him, the said Nelson F. Evans, to injure and defraud the said national banking association; that is to say, the said Harry H. Kennedy, late of the district aforesaid, heretofore, to wit, on the day and year aforesaid, in the district aforesaid, and within the jurisdiction of this court, being then and there cashier, as aforesaid, of the said national banking association aforesaid, did knowingly, unlawfully, fraudulently, and willfully and with intent to injure and defraud the said national banking association, misapply certain of the moneys, funds, and credits of the said national banking association, to wit, the sum of seventy-five hundred dollars, in the manner and by the means following: that is to say, a certain promissory note, dated, to wit, Philadelphia, November 10, 1890, made and drawn by a certain person, to wit, A. B. Nettleton, for the sum of, to wit, seventy-five hundred dollars, due and payable March 13, 1891, at the said bank, had been theretofore, to wit, upon the day and year aforesaid, discounted by the said bank, and was then and there overdue and unpaid, and held by the said bank as and for funds and credits, as aforesaid. Whereupon, the said Harry H. Kennedy did then and there, with intent to injure and defraud the said national banking association, knowingly, unlawfully, and fraudulently willfully misapply the same, in that he then and there surrendered and delivered the same to the said Nelson F. Evans without receiving therefore, for the said bank, the said sum of seventy-five hundred dollars , or any part thereof. And the said Nelson F. Evans did then and there, knowingly and unlawfully, aid and abet the said Harry H. Kennedy, then and there cashier as aforesaid, knowingly, unlawfully, and fraudulently, to willfully misapply the said funds and credits of the said national banking association, as aforesaid, then and there, with intent in him, the said Nelson F. Evans, to injure and defraud the said national banking association, contrary to the form of the act of congress in such case made and provided, and against the peace and dignity of the United States of America.'
Mr. Justice Field dissenting.
H. L. Carson and R. E. Shapley, for plaintiff in error.
Asst. Atty. Gen. Conrad, for the United States.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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