Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1881-06-17


n mani am sure that he would not ask that
the sentence Of your Honor should exceed, or
would for a moment believe that your Honor
would think II proper that IL should exceed,
the minimum limit Of punishment fixed by
this statute.
Remarks OF Col. IHaskins, u. y. Attor-
neY.
At the conclusion Of the remarks Of Mr..
Phelps Col. Haskins briefly called the atten-
ton of the Court to the provisions of the Ma
tional Banking net which require the presi-
dent or caehier Of national banks TO make a
detailed report at least Ave times each year to
the comptroller Of the currency, showing the
condition of the association, It's resources aud
liabilities, on certain given days that these
reports, 30 made by Mr.. Waite AZ president
Of the First National Bank of Brattleboro, are
alleged TO be and are now confessed to be
false, aud made with the intent TO deceive the
officers OF the government who had right
to know the condition of the banking asso-
citation at such times. Mr.. Hnsxins further
stated substantially as follows feel that II
Is due that l should say here, in oonsidera-
ton Of certain reports which have been made
and which have been referred to by Mr.
Phelps that the government is not at all sur
prised at the turn that this case has taken.
feel that il is due to the counsel for the de-
fence as well AZ to the respondent, that
should say that thore has been an under
standing between me and the counsel for Mr.
Waite that as soon as Mr.. Waite was able 10
appear in court plea of guilty should be en-
tered 10 q certain number OF offences under
this indictment, and that this has been car
ried out in perfect good faith, as had no
no doubt at any time but il would be. OF
course it does not require medical skill and
learning or medical experience to know that
Mr.. Waite has been very sick man, and that
he is still an invalid, and l have felt that this
was the earliest day at which he could, with
out further endangering his health aud his
life, be brought into court aud plead and re-
ceve his sentence. OF course l have no
knowledge as to the statements which have
been made here in relation to the condition
Of the bank, that it had been operated for
years upon an impaired capital, and, Of
course, that is nothing which have any
thing to do with. The offence is not that
these reports were made with the intent to
defraud anybody but were made with the in
tent aud for the purpose Of deceiving the Off
GERS and agents Of the government who had q
right to know. and TO which he has now plead
ed guilty. have nothing to say in relation
to the matter Of sentence for that the Court
will take care of-except that understand
from what investigation have given that his
offence is expressly declared in tho statute a
msdemeanor, aud that under the United
States law as it is administered, and under
the law Of the state of Vermont, the sentence
can only be imprisonment in some common
jail the House of Correction that the
State Prison is only open for the reception of
such prisoners of the United States as are
sentenced TO imprisonment at hard labor
the Federal statute does not authorize the
Court to sentence this prisoner to confne-
ment at hard labor.
Final Proceedings and Declaration Of
Sentence.
At this point inquiry was made by Judge
Wheeler if the court was TO understand that
counsel were agreed that the two counts up
on which the plea had been entered were 70
be treated as one offence inasmuch as, IL II
was to be treated as two offences, or as IL Il
were two indictments tho lowest limit would
be ten and the highest twenty years, while IL
IL was only one, the lowest limit would be
five and the highest ten years. The U. s. at
torney stated that he understood that there
were two distinct offences Mr. Phelps re-
piled that he did not understand that under
one indictment, the two counts could be treat
cd in respect TO sentence as IL they were two
Indictments, although the two counts refer
red to different transactions. The court
called attention TO the phraseology Of the
section Of the statute which designates the
limits Of the sentence to be imposed, and af-
ter reading the section the court further re.
marked that the counsel had undoubtedly all
noticed the decisions which have been made
| under statutes that were somewhat like the one
| in question. In the Tweed case in New York,
where the statute was that every person who
made false certificate or false audit should
be imprisoned, the respondent was convicted
OF 120 offences and sentenced under one
count in the indictment, the punishment for
a certain number of offences being one year,
and after one year Of imprisonment the court
of appeals said that was as far AS the indict.
ment covered. In the Tichborne case in
| England, where the same question came up
the decision was precisely the other way, ex-
| cept as there was difference in the law un-
der which the two courts were proceeding
| Either of these cases would DO an authority
for what it was worth, so far as the statute in
the present case was similar. II the counsel
had examined these cases and the statutes on
the subject and were agreed on this point,
the court would act upon that understanding
but was not willing TO pass sentence until Il
should know what the construction was
agreed between counsel TO be, or should have
determined for itself what the true construc-
tion ought 10 be. Mr.. Phelps commented
briefly upon the English and American cases
mentioned by the court, Remaining that the
respondent in the Tichborne case had been
convicted under the common law of two sep
arate aud distinct perjuries and sentenced by
the court for both of them one sentence TO
take effect upon the expiration Of the other,
aud very eminent counsel had there main
tanned that the law only warranted one SEN
tenee upon one indictment. The doctrine of
the court of appeals in New York would seem
TO be the true rule applicable to case arising
under a statute worded as the U. s. statute is
1t would not be taken by the court that Con-
| gress meant to say that upon an indictment
for an offence created by this section each
aud every repetition of that act in the pro-
cess Of the same business and in respect to
| the same facts was to be treated as a separate
offence, as if the respondent wtro president
OF two different banks. The U. s. attorney
referred to the statute in relation to joinder
under one indictment in several counts where
there were several charges against person
| for the same act, or for two or more offences
of the same class, and stated that in the
| drawing of the indictments in this case he
had regarded the different counts of the in
dictment as having reference 10 acts of the
same character, but each constituting q sep
arate and distinct offence for which an in
dictment might be found, and he understood
that il presented separately the court would
have ordered them upon motion of counsel 10
be consolidated and tried together. He had
understood that they were TO be treated as
though an indictment had been found upon
one OF the reports made by the respondent
and he had been put to plead, and afterwards
another indictment had been found at anoth-
er sitting Of the grand jury. Mr.. Phelps sug-
| gested that the statute referred only 10 the
matter of pleading, not affecting the ques.
ton Of sentence.
Judge Wheeler, after some further oonsid-
GRAFTON of the subject and expression Of the
views Of counsel, remarked that the view of
the court was that under this statute, where
the provision is that every president of a
bank who shall do a certain act shall be pun
ished in such or such manner, the number
OF offences does not increase the exteLt of
the punishment unless it is separately set up
and tried in separate indictments. The Sc
| spondent was indicted as the president OF a