                   U.S. Supreme Court 

           COFFIN v. U.S., 156 U.S. 432 (1895) 

                       COFFIN et al. 
                            v. 
                     UNITED STATES. 
                         No. 741. 

March 4, 1895. [156 U.S. 432, 433] By section 5209 of the Revised Statutes,
relating to national banks, certain acts therein enumerated are made
misdemeanors punishable by imprisonment for not less than 5 nor more than
10 years. The section reads as follows:

     'Every president, director, cashier, teller, clerk, or agent of any
     association who embezzles, abstracts, or willfully misapplies
     any of the moneys, funds, or credits of the association; or who,
     without authority from the directors, issues or puts in
     circulation any of the notes of the association; or 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,
     judgment, or decree; or who makes any false entry in any
     book, report, or statement 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,
     or to deceive any officer 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 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 in this case was found on the 21st December, 1893, against 
Theodore P. Haughey, who had been president of the Indianapolis National 
Bank, for violations of the foregoing section. F. A. Coffin and Percival B. 
Coffin, plaintiffs in error, and A. S. Reed, were charged therein with 
having aided and abetted Haughey in his alleged misdemeanors. The indictment 
is prolix and redundant, and it is difficult to [156 U.S. 432, 434] analyze 
it so as to make a concise statement of its contents. It contains 50 counts, 
and alleges that the various offenses enumerated in them were committed on 
different dates between January 1, 1891, and July 26, 1893. The counts 
embrace a number of acts made misdemeanors by the statute, and the charges 
are commingled in a very indefinite and confusing manner. All the counts, 
however, may be classified as follows:

     (1) Those which aver willful misapplication of the funds of the
     bank at a specified time, in a precise sum, and by enumerated
     and distinctly described acts.

     (2) Those which, although definite as to date and amount, are
     indefinite in their statement of the precise means by which the
     alleged crimes were accomplished.

     (3) Those which, while charging a willful misapplication of the
     funds of the bank for a definite amount are entirely indefinite as
     to the date or dates upon which the acts took place, and also
     fail to specify the particular acts by which the wrong was
     accomplished.

     (4) Those which charge false entries in the books of the bank.

     (5) Those which charge false entries in certain official
     statements of the condition of the bank made to the
     comptroller of the currency.

Under the first head-counts which are definite as to time, dates, amounts,
and methods -- are included Nos. 1, 2, 3, and 47. The first of these in order
of date -- for the counts are not arranged chronologically in the indictment --
is the forty-seventh, which reads as follows:

     'The grand jurors aforesaid, upon their oaths aforesaid, do
     further charge and present that Theodore P. Haughey, late of
     said district, at the district aforesaid, on, to wit, the 21st day of
     December, in the year of our Lord 1892, the said Theodore P.
     Haughey then and there being president of a certain national
     banking association, then and there known and designated as
     the Indianapolis National Bank, in the city of Indianapolis, in
     the state of Indiana, which said association had been
     heretofore [156 U.S. 432, 435] created and organized under the
     laws of the United States of America, and which said
     association was then and there carrying on a banking business
     in the city of Indianapolis, state of Indiana, did then and there,
     by virtue of his said office as president of said bank, unlawfully,
     feloniously, and willfully misapply the moneys, funds, and
     credits of the said association, which were then and there
     under his control, with intent to convert the same to the use of
     the Indianapolis Cabinet Company, and to other persons to the
     grand jurors unknown, in a large sum, to wit, the sum of six
     thousand three hundred and eighteen dollars, by then and there
     causing said sum to be paid out of the moneys, funds, and
     credits of said association, upon a check drawn upon said
     association by the Indianapolis Cabinet Company, which
     check was then and there cashed and paid out of the moneys,
     funds, and credits of said association aforesaid, which said sum
     aforesaid, and no part thereof, was said Indianapolis Cabinet
     Company entitled to withdraw from said bank, because said
     company had no funds in said association to its credit; that said
     Indianapolis Cabinet Company was then and there insolvent,
     as the said Theodore P. Haughey then and there well knew,
     whereby said sum became lost to said association; that all of
     said acts as aforesaid were done with intent to injure and
     defraud said association; that, as such president aforesaid, the
     said Theodore P. Haughey was intrusted and charged by the
     board of directors of said national banking association with the
     custody, control, and care of the moneys, funds, credits, and
     assets of said association, and the general superintendence of
     its affairs. 

     'And the grand jurors aforesaid do further say that Francis A.
     Coffin, Percival B. Coffin, and Albert S. Reed did unlawfully,
     willfully, knowingly, and feloniously, and with intent to injury
     and defraud said association, on to wit, the 21st day of
     December, in the year of our Lord 1892, aid and abet the said
     Theodore P. Haughey, as aforesaid, to wrongfully, unlawfully,
     feloniously, and willfully misapply the moneys, funds, and
     credits of said association as aforesaid, to wit, the sum of six
     thousand three hundred and eighteen dollars.' [156 U.S. 432, 436]
     The second and third counts are substantially like the
     foregoing, varying only in the statements of date, amount, and
     method. The first and remaining count under this head, after
     fixing the date of the offense and stating the amount at
     $5,802.84, describes the method by which the misapplication
     was accomplished, as follows:

     'The Indianapolis Cabinet Company, of Indianapolis, Indiana,
     presented to said bank and to the said Theodore P. Haughey,
     as such president thereof, a certain bill of exchange drawn by
     said Indianapolis Cabinet Company on the Indianapolis Desk
     Company, of London, England, for the sum of one thousand
     one hundred and ninety-four pounds sterling, and due on June
     1, 1893, which said bill of exchange was received by said
     Theodore P. Haughey, and placed to the credit of the said
     Indianapolis Cabinet Company upon the books of said bank,
     and the said Indianapolis Cabinet Campany thereupon drew its
     check for said sum upon the said bank, which check was then
     and there paid by said bank, under the direction of said
     Theodore P. Haughey; that said Indianapolis Desk Company,
     of London, England, did not owe said Indianapolis Cabinet
     Company any sum whatever; that said Theodore P. Haughey
     failed and refused to send said bill of exchange forward for
     collection, whereby said sum was lost to said association; that
     said sum was so willfully misapplied to the use and benefit of
     the Indianapolis Cabinet Company as aforesaid.'

Under the second head -- those definite as to date and amount, but 
indefinite in the statement of the method by which the wrong was committed 
-- are embraced counts 4, 5, 6, 7, 8, 9, 10, 11, and 12. Of these, the 
eighth is the first in order of time, and reads as follows:

     'The grand jurors aforesaid, upon their oaths aforesaid, do
     further charge and present that Theodore P. Haughey, late of
     said district, at the district aforesaid, on, to wit, the 23d day of
     September, in the year of our Lord 1892, the said Theodore
     P. Haughey then and there being the president of a certain
     national banking association, then and there known and
     designated as the Indianapolis National Bank, in the city of
     Indianapolis, in [156 U.S. 432, 437] the state of Indiana, which
     said as sociation had been heretofore created and organized
     under the laws of the United States of America, and which
     association was then and there carrying on a banking business
     in the city of Indianapolis, state of Indiana, did then and there,
     by virtue of his said office as president of said bank, unlawfully,
     feloniously, and willfully misapply the moneys, funds, and
     credits of the said association, without authority of the
     directors thereof, with intent to convert the same to the use of
     the Indianapolis Cabinet Company, and to other persons to the
     grand jurors unknown, in a large sum, to wit, the sum of three
     thousand nine hundred and sixty dollars and eighty-four cents,
     by then and there paying, and causing said sum to be paid out
     of the moneys, funds, and credits of said association, upon
     certain divers checks drawn upon said association by the
     Indianapolis Cabinet Company, which checks were then and
     there cashed and paid out of the moneys, funds, and credits of
     said association aforesaid, which said sum aforesaid, and no
     part thereof, was said Indianapolis Cabinet Company entitled
     to withdraw from said bank, because said company had no
     funds in said association to its credit; that said Indianapolis
     Cabinet Company was then and there insolvent, as the said
     Theodore P. Haughey then and there well knew, whereby said
     sum because lost to said association; that all of said acts, as
     aforesaid, were done with intent to injure and defraud said
     association; that, as such president aforesaid, the said
     Theodore P. Haughey was intrusted and charged by the board
     of directors of said national banking association with the
     custody, control, and care of the moneys, funds, credits, and
     assets of said association, and the general superintendence of
     all its affairs.

     'And the grand jurors aforesaid do further say that Francis A.
     Coffin and Percival B. Coffin and Albert S. Reed, at the
     district and state of Indiana aforesaid, did unlawfully, willfully,
     knowingly, and feloniously, and with intent to injure and
     defraud said association, on, to wit, the 23d day of
     September, in the year of our Lord 1892, aid and abet the said
     Theodore P. Haughey, as aforesaid, to wrongfully, unlawful,
     feloniously, [156 U.S. 432, 438] and willfully misapply the money,
     funds, and credits of said association, to wit, the sum of three
     thousand nine hundred and sixty dollars and eighty-four cents
     aforesaid.'

The other counts under this classification substantially vary only as to date
and amount.

Under the third head -- those which, while charging a willful misapplication 
of the funds of the bank for a definite amount, are indefinite as to the 
date or dates upon which the acts took place, and also fail to specify in 
any definite way the particular methods by which the wrong was accomplished 
-- are embraced counts 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 
26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36. Of these counts, the first in 
order of time is the seventeenth, which is as follows:

     'The grand jurors aforesaid, upon their oaths aforesaid, do
     further charge and present that Theodore P. Haughey, late of
     said district, at the district aforesaid, on, to wit, the 1st day of
     January, in the year of our Lord 1891, and on divers times
     between said date and the 25th day of July, in the year of our
     Lord 1893, the said theodore P. Haughey, then and there
     being the president of a certain national banking association,
     then and there known and designated as the Indianapolis
     National Bank, of Indianapolis, in the state of Indiana, which
     said association had been heretofore created and organized
     under the laws of the United States of America, and which said
     association was then and there carrying on a banking business
     in the city of Indianapolis, state of Indiana, did then and there,
     by virtue of his said office as president of said bank, and
     without authority of the board of directors, unlawfully,
     feloniously, and willfully misapply the moneys, funds, and
     credits of said association, with intent to convert the same to
     the use of the Indianapolis Cabinet Company, a more
     particular description of said moneys, funds, and credits being
     to the grand jurors unknown, in a large amount, to wit, the sum
     of three hundred and seventy-five thousand dollars, by then
     and there cashing, discounting, and paying, for the use and
     benefit of said Indianapolis Cabinet Company, out of the funds
     of said association, a large [156 U.S. 432, 439] number of
     worthless and insolvent notes, drafts, and bills of exchange,
     being drawn upon and by divers persons, firms, and
     companies, and corporations, each and all of whom were then
     insolvent, as the said Theodore P. Haughey then and there well
     knew, whereby said sum was wholly lost to said association,
     with intent then and there and thereby to injure and defraud
     said association; that, as such president aforesaid, the said
     Theodore P. Haughey was intrusted and charged by the board
     of directors of said national banking association with the
     custody, control, and care of the funds, credits, and assets of
     said association, and the general superintendence of its affairs,
     and agent of said association in the transaction of all its
     business.

     'And the grand jurors aforesaid do further say that Francis A.
     Coffin, Percival B. Coffin, and Albert S. Reed, at the district
     and state of Indiana aforesaid, did unlawfully, willfully,
     knowingly, and feloniously, and with intent to injure and
     defraud said association, on, to wit, the 1st day of January, in
     the year of our Lord 1891, and on divers times between said
     date and the 25th day of July, in the year of our Lord 1893,
     aid and abet the said Theodore P. Haughey, as aforesaid, to
     wrongfully, unlawfully, feloniously, and willfully misapply the
     moneys, funds, and credits of said association, to wit, the sum
     of three hundred and seventy-five thousand dollars aforesaid.'

The vagueness of the date, as fixed in this charge, is somewhat mitigated in 
four of the counts coming under this head, -- counts 13, 14, 15, and 16, -- 
wherein the offense is stated to have been committed 'on May 9, 1893, and at 
divers times between said date and June 18, 1893,' 'on June 19, 1893, and at 
divers times between said date and July 13, 1893,' 'on the 3d day of March, 
1893, and on divers dates between said date and the 8th day of May, 1893,' 
and 'on May 8, 1893, and at divers times between that date and June 18, 
1893.' In all the other counts the offense is said to have been committed 
between January 1, 1891, and July 25, 1893, except in one, wherein the last 
date is averred to be July 26, 1893, [156 U.S. 432, 440] instead of July 
25th. The sum averred to have been misapplied in counts 13, 14, 15, and 16 
is different from that charged in count 17, -- it being in the fourteenth, 
$9,132.19; in the fifteenth, $12,732.51; in the thirteenth and sixteenth, 
$10,106.08. In the other counts, where the date of the offense is stated as 
being between 1891 and 1893, the amount of the alleged misapplication 
varies; being placed in some at $375,000, and in others at $350,000.

The method by which the misapplication is alleged to have been accomplished 
is not indefinitely stated in all the other counts, as in the seventeenth, 
which we have just quoted. In some, instead of charging that the checks or 
'insolvent' notes, drafts, and bills were drawn 'by or upon divers persons, 
firms, companies, and corporations,' it is specified that the checks or the 
notes discounted were drawn by the Indianapolis Cabinet Company. With this 
exception, all the counts under this head are equally vague in regard to the 
specific methods of the misapplication. Some of them state that it was made 
by paying out the money of the bank on worthless checks of the Indianapolis 
Cabinet Company, without giving the dates or the amounts of the checks. More 
allege that the misapplication was brought about by allowing overdrafts, 
without giving the dates of such overdrafts, or specifying the various 
checks through which the overdrafting was done. Others, again, allege that 
the misapplication was accomplished by loaning the money of the bank to the 
Indianapolis Cabinet Company, in excess of 10 per cent. of the capital 
stock, without giving the dates or the precise amount of the loans. Again, 
it is charged that the misapplication was concealed by discounting and 
entering to the credit of the Indianapolis Cabinet Company a number of 
worthless notes and bills, without stating who were the drawers of the 
notes, or giving the dates and amounts of the entries which it is charged 
were made for the purpose of concealing the misapplication. Indeed, whatever 
may be the difference between the counts under this head, there is, as has 
been stated, a uniformity in one respect, -- their failure to disclose the 
specific methods by which the alleged offenses were committed, by giving 
dates and amounts. The only partial exceptions to this are found in counts 
35 and [156 U.S. 432, 441] 37, wherein the general charge of payment of 'a 
large number of worthless and insolvent drafts and bills of exchange in 
large amounts, a more particular description of which is to the grand jurors 
unknown, executed by and upon divers persons, firms, companies, and 
corporations, in large amounts, to wit,' is followed by an enumeration of 
certain persons or corporations, with a lump sum as against each person or 
corporation named. The intent with which the misapplication is charged to 
have been committed is not uniform in all the counts. In some it is averred 
that the misapplications were made to injure and defraud the bank and 
certain companies, bodies politic, bodies corporate, and individual persons, 
whose names are to the grand jurors unknown; in others, that it was made to 
defraud the bank alone; again, that entries of the worthless checks paid, or 
'insolvent' paper taken, were made on the books of the bank with intent to 
conceal the misapplication, and to deceive certain officers of the 
corporation, whose names are to the grand jurors unknown, or to deceive 
certain agents appointed or to be appointed by the comptroller of the 
currency, etc.

Under the fourth head -- those which charge the making of false entries in 
the books of the bank -- are embraced counts 37, 38, 39, 40, 41, 42, 43, 44, 
45, and 46. The counts under this head very only as to the particular false 
entry complained of, the date when made, and the folio of the account book 
where entered. Each particular false entry specified, except one, covers two 
counts; one charging it to have been made with intent to injure and defraud 
the association (bank), the other averring it to have been made to deceive 
any agent appointed, or who might be thereafter appointed, to examine the 
affairs of the bank, 'the names of said agent or agents being to the grand 
jurors unknown.'

The remaining counts belong to the fifth class; that is, relate to false 
entries which it is alleged were made in statements of the condition of the 
bank furnished to the comptroller of the currency.

A trial was begun under the indictment on the 10th of April, 1894, and 
progressed until the 25th of that month, when, [156 U.S. 432, 442] by 
consent of all parties, the jury was discharged because of the corrupt 
misconduct of one of the jurors. The court thereupon set the cause down for 
trial on the 1st of May. The defendants applied for a continuance upon two 
grounds: (1) because of the accidental wounding of the leading counsel for 
the accused, and his consequent inability to take part in the defense; and 
(2) because the general nature of the charges involved hundreds of 
transactions, covering thousands of dollars, and a long period of time, 
necessitating the examination of over 2,000 entries in the books of the 
bank, which were in the hands of the officers of the government, who denied 
access thereto. The court refused the motion for continuance, and exception 
was duly reserved. The trial commenced on May 4th.

During the course of the trial, many exceptions were reserved to the 
admission or rejection of testimony. They went not only to the admissibility 
of the proffered testimony under particular counts, but were also taken to 
the admission of any evidence whatever, upon the theory that the entire 
indictment charged no offense, therefore no proof could be made under it. 
Other objections were also reserved to comments made by the court upon the 
evidence as it was adduced, etc. On the close of the case for the 
prosecution, the defendants moved the court to oblige the government 'to 
elect and specify the particular transactions in each count of the general 
counts of the indictment in this case, to wit, from the 17th to 36th, both 
inclusive, upon which it relies as a substantive charge, and upon which it 
will claim a conviction of the defendants, or either of them; said election 
to be made before the evidence on behalf of the defendants is commenced, to 
the end that they, and each of them, may know to what particular charge in 
each count their evidence is required to be addressed.' To the refusal of 
the court to grant this motion, exception was reserved. The reason for 
refusing the request is not stated, but in the charge of the court to the 
jury the following language was used, which indicates its opinion on the 
subject: 'The particular acts of misapplication described in the several 
specific counts must be established by proof as therein [156 U.S. 432, 443] 
respectively charged. If, however, there are any willful misapplications 
shown by the evidence which are not covered by special or specific counts, 
they may be included under the general counts, and a verdict thereon 
rendered accordingly.

Before the case went to the jury the prosecution abandoned the 
forty-seventh, forty-eighth, forty-ninth, and fiftieth counts of the 
indictment; thus eliminating from it one of the specific counts, and all 
those which referred to false entries in official statements as to the 
condition of the bank made to the comptroller. On the close of the case the 
defendants proffered to the court 45 written requests to charge, and, upon 
the court's refusing them all, excepted to such refusal as to each, or 
rather as to 44 thereof. To the charge of the court actually delivered to 
the jury, the defendants reserved 26 exceptions. A controversy exists as to 
whether one of the 26 exceptions was properly taken. The facts, as stated in 
the bill of exceptions, are as follows:

     'After the court had delivered its charge to the jury, and before
     it retired, the court said: 'If it is the desire of counsel for
     defendant to reserve any exceptions to the charges given and
     refused, the practice in this court requires that that shall be
     done before the jury retires.'

     'Mr. Miller: 'It is, of course, if your honor please, the desire on
     behalf of defendants to reserve exceptions to the refusal of
     such instructions as were requested and refused, and to parts
     of the instruction given. Without having a little time to examine
     these instructions, it is impossible for us now to designate the
     particular parts. We would like to have time to look at them
     for that purpose.'

     'The Court: 'What length of time would you desire?'

     'Mr. Miller: 'I do not know, if your honor please, how long it
     would take. It has taken an hour to read them.'

     'Mr. Duncan: 'They can be made, when made, as of this time,
     with permission of the court.'

     'The Court: 'Except so far as any mere verbal changes are
     concerned, which, if the court's attention was drawn to, it
     would at once correct, I have no objection to that method of
     procedure.' [156 U.S. 432, 444] 'Mr. Miller: 'Of course, anything
     that is formal, of that character, that won't go to the substance
     of the matter, we should not expect to insist on. But, as your
     honor can see it, it is impossible for us, from hearing the
     instructions read for an hour, to select the parts.'

     'The Court: 'There are the instructions you propose
     (indicating), and these instructions I do not care to have mislaid
     or lost (indicating).'

     'Mr. Miller: 'No, sir; of course not. For that matter, every
     syllable of them has been taken down by two stenographers
     here, -- all of your instructions, as you read them, -- so there
     cannot be any possibility of any trouble about them. We take
     them and make --'

     'The Court: 'Where is the bailiff?'

     'Mr. Taylor: 'You may take these forms of the verdict and the
     indictment.' 

     "Gentlemen of the jury, you may retire with your bailiff."

The bill of exceptions then states that at the time this colloquy took place 
the assistant attorney for the prosecution was present in the court room, 
heard the conversation, and assented to the arrangement thus made.

It further states that a few minutes after 3 in the afternoon the jury 
retired to consider their verdict; that the defendants' counsel took the 
instructions given by the court which were typewritten, and noted thereon, 
by inclosing the same in a parenthesis mark with pencil, the parts of such 
instructions so given by the court to which exceptions were taken, the parts 
thus marked being respectively numbered; that at 9 o'clock that night the 
defendants' counsel returned to the court room, and handed the instructions 
which had been so marked and numbered by them to the judge, in open court, 
saying that the parts marked in parentheses and numbered were those to which 
the defendants excepted, and to which they reserved their bill, under the 
understanding previously had; that immediately thereafter the jury, which 
had not reached a conclusion, was brought into court, and informed by the 
judge that he would be within call until 11 o'clock to receive a verdict, 
and if they did [156 U.S. 432, 445] not agree by that time they might seal 
their verdict, and bring it into court on Monday morning, it being then 
Saturday evening.

On May 28th the defendants, through their counsel, wrote out in full their 
exceptions to the various parts of the charge, as marked and numbered, and 
presented them to the court, which declined to sign them because of the 
twenty-second exception, which it considered not properly taken, under the 
understanding between court and counsel above stated. However, the court 
signed the bill of exceptions, writing therein a narrative of the facts, and 
predicating its objection to the twenty-second exception on the ground that 
the matter covered by it was merely verbal, and at the time the parties were 
given the right to take their bill the court did not include any mere verbal 
error, which would have been corrected if attention had been called to it in 
proper time. The language contained in the charge covered by the disputed 
exception is as follows:

     'I do not wish to be understood as meaning that the intent to
     injure, deceive, or defraud is conclusively established by the
     simple proof of the doing of the prohibited act which results in
     injury. What I do mean is this: That when the prohibited acts
     are knowingly and intentionally done, and their natural and
     legitimate consequence is to produce injury to the bank, or to
     benefit the wrongdoer, the intent to injure, deceive, or defraud
     is thereby sufficiently established to cast on the accused the
     burden of showing that their purpose was lawful, and their acts
     legitimate.'

On the 28th day of May the jury returned a verdict against the plaintiffs in 
error of guilty as charged on all the counts of the indictment. After an 
ineffectual motion for a new trial, which restated the various grounds of 
objection raised to the admissibility of evidence under the indictment, and 
which had also been urged in the charges which had been requested and 
refused, the defendants moved in arrest. After argument upon this motion the 
court sustained the same as to the 17th, 18th, 19th, 20th, 21st, 22d, 23d, 
24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32d, 33d, 34th, 35th, and 
36th counts.

This reduced the indictment -- First, to those counts which [156 U.S. 432, 
446] were specific as to date, amount, and method; second, to those which, 
while specific in amount and date, were not specific as to method; third, to 
four counts, Nos. 13, 14, 15, and 16, which were not specific as to date or 
method, leaving in addition all the counts charging false entries in the 
books of the bank. The errors assigned here are 78 in number, and cover all 
the objections which were made to the rulings of the court below during the 
trial, and the exceptions based on charges requested and refused, as well as 
charges given. 

W. H. H. Miller, Ferdinand Winter, and John B. Elam, for plaintiffs in error.

Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice WHITE, after making a statement of the case, delivered
the opinion of the court.

Many of the exceptions taken during the trial, and the requests to charge 
which were refused, as well as most of the exceptions to the charge as 
given, relate to the counts of the indictment which were quashed on the 
motion in arrest. All these questions are therefore eliminated. We shall 
hence only consider the matters which are pertinent to the remaining counts, 
and shall examine first the objections made to the indictment generally, 
based upon the contention that all the counts fail to charge an offense; 
second, the exceptions reserved to rulings of the court during the trial, 
the effect of which is to assail the verdict and judgment without reference 
to the validity of the indictment. In making this examination, we shall 
concentrate the errors complained of in proper order, thus obviating 
repetition; for the matters to be considered are all reiterated by way of 
objection to the evidence, of exception to the refusal to charge as 
requested, and of complaints of the charges which the court actually gave.

It is contended that no offense is stated against the aiders and abettors, 
because in none of the counts is it asserted that [156 U.S. 432, 447] they 
were officers of the bank, or occupied any specific relation to the bank 
which made aiding and abetting possible. The language of the statute fully 
answers this contention. It provides that 'every president, director, 
cashier, teller, clerk, or agent of any association, who.' etc., and adds, 
after defining the acts which are made misdemeanors, 'that every person who 
with like intent aids and abets,' etc. The phrase 'every person' is 
manifestly broader than the enumeration made in the first portion of the 
statute. In other words, the unambiguous letter of the law is that every 
president, director, agent, etc., who commits the designated offenses, shall 
suffer the penalties provided, and that every person who aids or abets such 
officer, etc. The argument is that no one but an officer or an agent can be 
punished as an aider and abettor, and hence that every person who aids and 
abets, not being an officer, shall go unwhipped of justice. To adopt the 
construction contended for would destroy the letter and violate the spirit 
of the law; for the letter says, 'every person who aids and abets,' and the 
proposition is that we should make it say 'every officer or agent who aids 
and abets.' The spirit and purpose of the statute are to punish the 
president, cashier, officer, or agent, etc., and likewise to punish every 
person who aids and abets. The assertion that one who is not an officer, or 
who bears no official relation to the bank, cannot, in the nature of things, 
aid or abet an official of the bank in the misapplication of its funds, is 
an argument which, if sound, should be addressed to the legislative, and not 
the judicial, department. We cannot destroy the law on the theory that the 
acts which it forbids cannot be committed. In other words, the construction 
which we are asked to give does not deal with the meaning of the statute, 
but simply involves the claim that it is impossible to prove the commission 
of the offense defined by the law. The question whether the proof shows the 
commission of an offense is one of fact, and not of law. The citation made 
from U. S. v. Northway, 120 U.S. 333, 7 Sup. Ct. 580, is not apposite. True, 
we there said, 'All the acts charged against Fuller could only be committed 
by him by virtue of his official relation to the bank, and the acts charged 
against the [156 U.S. 432, 448] defendant likewise could only be committed 
by him in his official capacity.' But in that case the indictment itself 
charged Northway, as president and agent, with aiding and abetting Fuller, 
the cashier of the bank, and the language quoted referred to the matter 
under consideration, and hence it was incidentally stated that the proof and 
averment must correspond.

Nor is the contention sound that the particular act by which the aiding and 
abetting was consummated must be specifically set out. The general rule upon 
this subject is stated in U. S. v. Simmonds, 96 U.S. 360, as follows: 'Nor 
was it necessary, as argued by counsel for the accused, to set forth the 
special means employed to effect the alleged unlawful procurement. It is 
laid down as a general rule that in an indictment for soliciting or inciting 
to the commission of a crime, or for aiding or assisting in the commission 
of it, it is not necessary to state the particulars of the incitement or 
solicitation, or of the aid or assistance. 2 Whart. Cr. Law, 1281; U. S. v. 
Gooding, 12 Wheat. 460.' The form books give the indictment substantially as 
it appears here. Bish. Forms, 114, p. 52. Nothing in Evans v. U. S., 153 
U.S. 608, 14 Sup. Ct. 939, conflicts with these views. In that case the 
question was whether the eighth count stated misapplication of the funds, 
and not whether the particular acts by which the aiding and abetting were 
done were necessary to be set out in the indictment. On the contrary, the 
counts there held good charged the aiding and abetting in the very language 
found in the indictment in hand, -- 'and the said Evans did then and there 
knowingly and unlawfully aid and abet the said cashier in such willful 
misapplication with intent in him, the said Evans, to injure and defraud,' 
etc.

2. It is said that all the counts in the indictment are bad because it is 
not charged that the aiders and abettors knew that Haughey was president of 
the bank at the time it is averred the acts were committed. The argument is 
this: The statute says that every person who with like intent aids or abets 
any officer, etc. Therefore, the fact that the aider or abettor knew that 
the person who misapplied the funds was [156 U.S. 432, 449] an officer, 
etc., must be specifically charged. Without considering the legal 
correctness of this proposition, it may be observed that it has no 
application to this cause. Each and every count here specifically avers that 
'the said Theodore P. Haughey, then and there being president of the bank,' 
and 'then and there, by virtue of his said office, as such president as 
aforesaid,' 'misapplied the funds'; and having thus fully averred the 
relation of Haughey to the bank, and the commission of the acts complained 
of, in his official capacity, with intent to defraud, etc., the counts go on 
to charge that the plaintiffs in error did unlawfully, willfully, 
feloniously, knowingly, and with intent to defraud, aid, and abet the 'said 
Haughey as aforesaid.' The words 'as aforesaid' clearly relate to Haughey in 
the capacity in which it is stated that he committed the offense charged 
against him in the body of the indictment. Without entering into any nice 
question of grammar, or undertaking to discuss whether the word 'said,' 
before Haughey's name, and the words 'as aforesaid,' which follow it, are 
adverbial, we think the plain and unmistakable statement of the indictment, 
as a whole, is that the acts charged against Haughey were done by him as 
president of the bank, and that the aiding and abetting were also knowingly 
done, by assisting him in the offcial capacity, in which alone it is charged 
that he misapplied the funds.

3. It is further contended that all the counts of the indictment, except the 
first, are insufficient because they fail to aver the actual conversion of 
the sum misapplied to the use of any particular person. This proposition is 
based on the cases of U. S. v. Britton, 107 U.S. 666, 2 Sup. Ct. 512, and U. 
S. v. Northway, supra. In the Britton Case we said 'that the willful 
misapplication which was made an offense by this statute means a 
misapplication for the use, benefit, or gain of the party charged, or some 
other person; and therefore, to constitute the offense of willful 
misapplication, there must be a conversion to the party's own use, or to the 
use of some one else, of the funds of the association. This essential 
element of the offense is not averred in the indictment [156 U.S. 432, 450] 
under consideration, but is negatived by the averment that the shares 
purchased by the defendant were held by him in trust for the use of the 
association; and there is no averment of a conversion by the defendant, for 
his own use, or the use of any other person, of the funds used in purchasing 
the shares. The counts, therefore, charge maladministration of the affairs 
of the bank rather than criminal misapplication of the funds.' So, in 
Northway's Case, we said, 'It is of the essence of the crime of 
misapplication that there should be conversion of the funds to the use of 
the defendant, or of some other person than the association.' The various 
counts of the indictment here are all substantially alike in stating the 
conversion. We take the second as an example. That charges that Haughey, 
being president of the Indianapolis Bank, did then and there, by virtue of 
his office as president of said bank. unlawfully, feloniously, and willfully 
misapply the moneys, funds, and credits of the bank, with intent to convert 
the same to the use of the Indianapolis Cabinet Company, by then and there 
causing said sum to be paid out of the moneys, funds, and credits of the 
bank, upon a check drawn upon the bank by the Indianapolis Cabinet Company, 
which check was then and there cashed and paid out of the funds and credit 
of the bank, which sum, and no part thereof, was the said Indianapolis 
Cabinet Company entitled to withdraw from the bank, because said company had 
no funds in the bank, and that the said company was then and there 
insolvent, which Haughey then and there well knew, whereby said sum became 
lost to the bank. This clearly states the misapplication and actual 
conversion of the money by the methods described; that is to say, by paying 
it out of the funds of the bank to a designated person, when that person was 
not entitled to take the funds, and that, owing to the insolvency of such 
person, the money was lost to the bank. The fact that the count charges the 
intent to convert money to the use of the Indianapolis Cabinet Company does 
not obliterate the clear statement of the actual conversion. In this regard 
the count is clearer and [156 U.S. 432, 451] stronger than that held 
sufficient in Evans v. U. S., supra.

4. The following request was made and refused:

     'Each of the forty-six counts of this indictment, except the 1st,
     the 40th, the 41st, and the 43d, alleges that certain facts
     therein referred to are unknown to the grand jury. Thus, the
     2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th counts
     each aver a misapplication of the funds of said bank by said
     Haughey with intent to convert the same to the use of the
     Indianapolis Cabinet Company, and to other persons to the
     grand jury unknown. The averment that the names of these
     persons were unknown to the grand jurors is a material
     averment, and is necessary to be proven by the government, in
     order to make out its case in each of said counts, because in
     each of said counts the charge is of a misapplication of a single,
     definite, fixed sum, with an intent to convert the same to the
     use, not merely of the cabinet company, but of other persons.
     If, as a matter of fact, no evidence has been placed before you
     showing, or tending to show, that the names of such persons
     were unknown to the grand jury, then, as to these counts, the
     government's case has failed.'

In connection with this ruling, the bill of exceptions states that there was 
no evidence whatever on the subject offered by either side, and nothing to 
indicate that there was knowledge in the grand jurors of the matter which 
the indictment declared to be to them unknown. The instruction was rightly 
refused. It presupposes that where there is an averment that a person or 
matter is unknown to a grand jury, and no evidence upon the subject of such 
knowledge is offered by either side, acquittal must follow, while the true 
rule is that, where nothing appears to the contrary, the verity of the 
averment of want of knowledge in the grand jury is presumed. Thus, it was 
said in Com. v. Thornton, 14 Gray, 43: 'The fact that the name of the person 
was in fact known must appear from the evidence in the case. It is 
immaterial whether it so appears from the evidence offered by the 
government, or that offered by the defendant. But, there being no evidence 
to the contrary, the objection that the party was not unknown does [156 U.S. 
432, 452] not arise.' And previously, in Com. v. Sherman, 3 Allen, 248, the 
court observed: 'It is always open to the defendant to move the judge before 
whom the trial is had to order the prosecuting attorney to give a more 
particular description, in the nature of a specification or bill of 
particulars, of the acts on which he intends to rely, and to suspend the 
trial until this can be done; and such an order will be made whenever it 
appears to be necessary to enable the defendant to meet the charge against 
him, or to avoid danger of injustice. Com. v. Giles, 1 Gray, 469; King v. 
Curwood, 3 Adol. & El. 815; Rosc. Cr. Ev. (6th Ed.) 178, 179, 420.' It is to 
be observed that none of the counts as to which the prosecution was called 
upon to specify remain, all having been eliminated by the action of the 
court on the motion in arrest.

This concludes the examination of all the general objections to the 
indictment which we deem it necessary to consider, and brings us to the 
exceptions taken to the refusals to charge, as well as those reserved to the 
charges actually given.

The forty-fourth charge asked and refused was as follows:

     'The law presumes that persons charged with crime are
     innocent until they are proven, by competent evidence, to be
     guilty. To the benefit of this presumption the defendants are all
     entitled, and this presumption stands as their sufficient
     protection, unless it has been removed by evidence proving
     their guilt beyond a reasonable doubt.'

Although the court refused to give this charge, it yet instructed the jury 
as follows: 'Before you can find any one of the defendants guilty, you must 
be satisfied of his guilt, as charged in some of the counts of the 
indictment, beyond a reasonable doubt.' And again: 'You may find the 
defendants guilty on all the counts of the indictment, if you are satisfied 
that, beyond a reasonable doubt, the evidence justifies it.' And finally, 
stating the matter more fully, it said: 'To justify you in returning a 
verdict of 'Guilty,' the evidence must be of such a character as to satisfy 
your judgment to the exclusion of every reasonable doubt. If, therefore, you 
can reconcile the evidence with any reasonable hypothesis consistent [156 
U.S. 432, 453] with the defendants' innocence, it is your duty to do so, and 
in that case find the defendants not guilty. And if, after weighing all the 
proofs, and looking only to the proofs, you impartially and honestly 
entertain the belief that the defendants may be innocent of the offenses 
charged against them, they are entitled to the benefit of that doubt, and 
you should acquit them. It is not meant by this that the proof should 
establish their guilt to an absolute certainty, but merely that you should 
not convict unless, from all the evidence, you believe the defendants are 
guilty beyond a reasonable doubt. Speculative notions, or possibilities 
resting upon mere conjecture, not arising or deducible from the proof, or 
the want of it, should not be confounded with a reasonable doubt. A doubt 
suggested by the ingenuity of counsel, or by your own ingenuity, not 
legitimately warranted by the evidence, or the want of it, or one born of a 
merciful inclination to permit the defendants to escape the penalty of the 
law, or one prompted by sympathy for them or those connected with them, is 
not what is meant by a reasonable doubt. A 'reasonable doubt,' as that term 
is employed in the administration of the criminal law, is an honest, 
substantial misgiving, generated by the proof, or the want of it. It is such 
a state of the proof as fails to convince your judgment and conscience, and 
satisfy your reason of the guilt of the accused. If the whole evidence, when 
carefully examined, weighed, compared, and considered, produces in your 
minds a settled conviction or belief of the defendants' guilt, -- such an 
abiding conviction as you would be willing to act upon in the most weighty 
and important affairs of your own life, -- you may be said to be free from 
any reasonable doubt, and should find a verdict in accordance with that 
conviction or belief.'

The fact, then, is that, while the court refused to instruct as to the 
presumption of innocence, it instructed fully on the subject of reasonable 
doubt.

The principle that there is a presumption of innocence in favor of the 
accused is the undoubted law, axiomatic and elementary, and its enforcement 
lies at the foundation of the administration of our criminal law. [156 U.S. 
432, 454] It is stated as unquestioned in the textbooks, and has been 
referred to as a matter of course in the decisions of this court and in the 
courts of the several states. See 1 Tayl. Ev. c. 5, 126, 127; Wills, Circ. 
Ev. c. 5, 91; Best. Pres. pt. 2, c. 1, 63, 64; Id. c. 3, 31-58; Greenl. Ev. 
pt. 5, 29, etc.; 11 Cr. Law Mag. 3; Whart. Ev. 1244; 2 Phil. Ev. ( Cowen & 
Hill's Notes) p. 289; Lilienthal's Tobacco v. U. S., 97 U.S. 237; Hopt v. 
Utah, 120 U.S. 430 , 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v. 
Bartlett, 43 N. H. 224; Alexander v. People, 96 Ill. 96; People v. 
Fairchild, 48 Mich. 31, 11 N. W. 773; People v. Millard, 53 Mich. 63, 18 N. 
W. 562; Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; 
Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v. 
State, 44 Ala. 15.

Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius Do 
Probationibus to show that it was substantially embodied in the laws of 
Sparta and Athens. On Evidence, pt. 5, 29, note. Whether Greenleaf is 
correct or not in this view, there can be no question that the Roman law was 
pervaded with the results of this maxim of criminal administration, as the 
following extracts show:

     'Let all accusers understand that they are not to prefer charges
     unless they can be proven by proper witnesses or by
     conclusive documents, or by circumstantial evidence which
     amounts to indubitable proof and is clearer than day.' Code, L.
     4, tit. 20, 1, l. 25.

     'The noble (divus) Trajan wrote to Julius Frontonus that no
     man should be condemned on a criminal charge in his absence,
     because it was better to let the crime of a guilty person go
     unpunished than to condemn the innocent.' Dig. L. 48, tit. 19,
     l. 5.

     'In all case of doubt the most merciful construction of facts
     should be preferred.' Dig. L. 50, tit. 17, l. 56.

     'In criminal cases the milder construction shall always be
     preserved.' Dig. L. 50, tit. 17, 1, 155, 2.

     'In cases of doubt it is no less just than it is safe to adopt the
     milder construction.' Dig. L. 50, tit. 17, l. 192, 1. [156 U.S. 432,
     455] Ammianus Marcellinus relates an anecdote of the Emperor
     Julian which illustrates the enforcement of this principle in the
     Roman law. Numerius, the governor of Narbonensis, was on
     trial before the emperor, and, contrary to the usage in criminal
     cases, the trial was public. Numerius contented himself with
     denying his guilt, and there was not sufficient proof against him.
     His adversary, Delphidius, 'a passionate man,' seeing that the
     failure of the accusation was inevitable, could not restrain
     himself, and exclaimed, 'Oh, illustrious Caesar! if it is sufficient
     to deny, what hereafter will become of the guilty?' to which
     Julian replied, 'If it suffices to accuse, what will become of the
     innocent?' Rerum Gestarum, lib. 18, c. 1. The rule thus found
     in the Roman law was, along with many other fundamental and
     human maxims of that system, preserved for mankind by the
     canon law. Decretum Gratiani de Presumptionibus, L. 2, T.
     23, c. 14, A. D. 1198; Corpus Juris Canonici Hispani et
     Indici, R. P. Murillo Velarde, Tom. 1, L. 2, n. 140. Exactly
     when this presumption was, in precise words, stated to be a
     part of the common law, is involved in doubt. The writer of an
     able article in the North American Review (January, 1851),
     tracing the genesis of the principle, says that no express
     mention of the presumption of innocence can be found in the
     books of the common law earlier than the date of McNally's
     Evidence (1802). Whether this statement is correct is a matter
     of no moment, for there can be no doubt that, if the principle
     had not found formal expression in the common-law writers at
     an earlier date, yet the practice which flowed from it has
     existed in the common law from the earliest time.

     Fortescue says: 'Who, then, in England, can be put to death
     unjustly for any crime? since he is allowed so many pleas and
     privileges in favor of life. None but his neighbors, men of
     honest and good repute, against whom he can have no
     probable cause of exception, can find the person accused
     guilty. Indeed, one would much rather that twenty guilty
     persons should escape punishment of death than that one
     innocent person should be condemned and suffer capitally.' De
     Laudibus Legum Angliae (Amos' translation, Cambridge,
     1825). [156 U.S. 432, 456] Lord Hale (1678) says: 'In some cases
     presumptive evidence goes far to prove a person guilty, though
     there be no express proof of the fact to be committed by him;
     but then it must be very warily pressed, for it is better five
     guilty persons should escape unpunished than one innocent
     person should die.' 2 Hale, P. C. 290. He further observes:
     'And thus the reasons stand on both sides; and, though these
     seem to be stronger than the former, yet in a case of this
     moment it is safest to hold that in practice, which hath least
     doubt and danger, -- 'Quod dubitas, ne feceris." 1 Hale, P. C.
     24.

     Blackstone (1753-1765) maintains that 'the law holds that it is
     better that ten guilty persons escape than that one innocent
     suffer.' 2 Bl. Comm. c. 27, marg. p. 358, ad finem.

How fully the presumption of innocence had been evolved as a principle and 
applied at common law is shown in McKinley's Case (1817) 33 State Tr. 275, 
506, where Lord Gillies says: 'It is impossible to look at it [a treasonable 
oath which it was alleged that McKinley had taken] without suspecting, and 
thinking it probable, it imports an obligation to commit a capital crime. 
That has been and is my impression. But the presumption in favor of 
innocence is not to be redargued by mere suspicion. I am sorry to see, in 
this information, that the public prosecutor treats this too lightly. He 
seems to think that the law entertains no such presumption of innocence. I 
cannot listen to this. I conceive that this presumption is to be found in 
every code of law which has reason and religion and humanity for a 
foundation. It is a maxim which ought to be inscribed in indelible 
characters in the heart of every judge and juryman, and I was happy to hear 
from Lord Hermand he is inclined to give full effect to it. To overturn 
this, there must be legal evidence of guilt, carrying home a decree of 
conviction short only of absolute certainty.' 

It is well settled that there is no error in refusing to give a correct 
charge precisely as requested, provided the instruction actually given 
fairly covers and includes the instruction asked. Tweed's Case, 16 Wall. 
504; Railway Co. v. Whitton, 13 Wall. 270. The contention here is that, 
inasmuch as the charge given by the court [156 U.S. 432, 457] on the subject 
of reasonable doubt substantially embodied the statement of the presumption 
of innocence, therefore the court was justified in refusing, in terms, to 
mention the latter. This presents the question whether the charge that there 
cannot be a conviction unless the proof shows guilt beyond a reasonable 
doubt so entirely embodies the statement of presumption of innocence as to 
justify the court in refusing, when requested, to inform the jury concerning 
the latter. The authorities upon this question are few and unsatisfactory. 
In Texas it has been held that it is the duty of the court to state the 
presumption of innocence along with the doctrine of reasonable doubt, even 
though no request be made to do so. Black v. State, 1 Tex. App. 369; 
Priesmuth v. State, Id. 480; McMullen v. State, 5 Tex. App. 577. It is 
doubtful, however, whether the rulings in these cases were not based upon 
the terms of a Texas statute, and not on the general law. In Indiana it has 
been held error to refuse, upon request, to charge the presumption of 
innocence, even although it be clearly stated to the jury that conviction 
should not be had unless guilt be proven beyond reasonable doubt. Long v. 
State, 46 Ind. 582; Line v. State, 51 Ind. 175. But the law of Indiana 
contains a similar provision to that of Texas. In two Michigan cases, where 
the doctrine of reasonable doubt was fully and fairly stated, but no request 
to charge the presumption of innocence was made, it was held that the 
failure to menion the presumption of innocence could not be assigned for 
error in the reviewing court. People v. Potter, 89 Mich. 353, 50 N. W. 994; 
People v. Graney, 91 Mich. 648, 52 N. W. 66. But in the same state, where a 
request to charge the presumption of innocence was made and refused, the 
refusal was held erroneous, although the doctrine of reasonable doubt had 
been fully given to the jury. People v. Macard, 73 Mich. 15, 40 N. W. 784. 
On the other hand, in Ohio it has been held not error to refuse to charge 
the presumption of innocence where the charge actually given was 'that the 
law required that the state should prove the material elements of the crime 
beyond doubt.' Moorehead v. State, 34 Ohio St. 212. It may be that the 
paucity of authority upon this subject results from [156 U.S. 432, 458] the 
fact that the presumption of innocence is so elementary that instances of 
denial to charge it upon request have rarely occurred. Such is the view 
expressed in a careful article in the Criminal Law Magazine for January, 
1889 (volume 11, p. 3): 'The practice of stating this principle to juries is 
so nearly universal that very few cases are found where error has been 
assigned upon the failure or refusal of the judge so to do.' But, whatever 
be the cause, authorities directly apposite are few and conflicting, and 
hence furnish no decisive solution of the question, which is further 
embarrassed by the fact that in some few cases the presumption of innocence 
and the doctrine of reasonable doubt are seemingly treated as synonymous. 
Ogletree v. State, 28 Ala. 693; Moorer v. State, 44 Ala. 15; People v. 
Lenon, 79 Cal. 625, 631, 21 Pac. 967. In these cases, however, it does not 
appear that any direct question was made as to whether the presumption of 
innocence and reasonable doubt were legally equivalent; the language used 
simply implying that one was practically the same as the other, both having 
been stated to the jury.

Some of the text-books, also, in the same loose way, imply the identity of 
the two. Stephen, in his History of the Criminal Law, tells us that 'the 
presumption of innocence is otherwise stated by saying the prisoner is 
entitled to the benefit of every reasonable doubt.' Volume 1, p. 438. So, 
although Best, in his work on Presumptions, has fully stated the presumption 
of innocence, yet, in a note to Chamberlayne's edition of that author's work 
on Evidence (Boston, 1883; page 304, note a), it is asserted that no such 
presumption obtains, and that 'apparently all that is meant by the statement 
thereof, as a principle of law, is this: If a man be accused of crime, he 
must be proved guilty beyond reasonable doubt.'

This confusion makes it necessary to consider the distinction between the 
presumption of innocence and reasonable doubt as if it were an original 
question. In order to determine whether the two are the equivalents of each 
other, we must first ascertain, with accuracy, in what each consists. Now, 
the presumption of innocence is a conclusion drawn by the law in favor of 
the citizen, by virtue whereof, when brought to trial [156 U.S. 432, 459] 
upon a criminal charge, he must be acquitted, unless he is proven to be 
guilty. In other words, this presumption is an instrument of proof created 
by the law in favor of one accused, whereby his innocence is established 
until sufficient evidence is introduced to overcome the proof which the law 
has created. This presumption, on the one hand, supplemented by any other 
evidence he may adduce, and the evidence against him, on the other, 
constitute the elements from whch the legal the elements from which the 
legal drawn.

Greenleaf thus states the doctrine: 'As men do not generally violate the 
Penal Code, the law presumes every man innocent; but some men do transgress 
it, and therefore evidence is received to repel this presumption. This legal 
presumption of innocence is to be regarded by the jury, in every case, as 
matter of evidence, to the benefit of which the party is entitled.' On 
Evidence, pt. 1, 34.

Wills on Circumstantial Evidence says: 'In the investigation and estimate of 
criminatory evidence, there is an antecedent, prima facie presumption in 
favor of the innocence of the party accused, grounded in reason and justice 
not less than in humanity, and recognized in the judicial practice of all 
civilized nations, which presumption must prevail until it be destroyed by 
such an overpowering amount of legal evidence of guilt as is calculated to 
produce the opposite belief.' Best on Presumptions declares the presumption 
of innocence to be a 'presumptio juris.' The same view is taken in the 
article in the Criminal Law Magazine for January, 1888, to which we have 
already referred. It says: 'This presumption is in the nature of evidence in 
his favor [i. e. in favor of the accused], and a knowledge of it should be 
communicated to the jury. Accordingly, it is the duty of the judge, in all 
jurisdictions, when requested, and in some when not requested, to explain it 
to the jury in his charge. The usual formula in which this doctrine is 
expressed is that every man is presumed to be innocent until his guilt is 
proved beyond a reasonable doubt. The accused is entitled, if he so requests 
it, ... to have this rule of law expounded to the jury in this or in some 
equivalent form of expression.' [156 U.S. 432, 460] The fact that the 
presumption of innocence is recognized as a presumption of law, and is 
characterized by the civilians as a presumptio juris, demonstrates that it 
is evidence in favor of the accused. For, in all systems of law, legal 
presumptions are treated as evidence giving rise to resulting proof, to the 
full extent of their legal efficacy.

Concluding, then, that the presumption of innocence is evidence in favor of 
the accused, introduced by the law in his behalf, let us consider what is 
'reasonable doubt.' It is, of necessity, the condition of mind produced by 
the proof resulting from the evidence in the cause. It is the result of the 
proof, not the proof itself, whereas the presumption of innocence is one of 
the instruments of proof, going to bring about the proof from which 
reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is 
therefore to say that legal evidence can be excluded from the jury, and that 
such exclusion may be cured by instructing them correctly in regard to the 
method by which they are required to reach their conclusion upon the proof 
actually before them; in other words, that the exclusion of an important 
element of proof can be justified by correctly instructing as to the proof 
admitted. The evolution of the principle of the presumption of innocence, 
and its resultant, the doctrine of reasonable doubt, make more apparent the 
correctness of these views, and indicate the necessity of enforcing the one 
in order that the other may continue to exist. While Rome and the 
Mediaevalists taught that, wherever doubt existed in a criminal case, 
acquittal must follow, the expounders of the common law, in their devotion 
to human liberty and individual rights, traced this doctrine of doubt to its 
true origin, -- the presumption of innocence, -- and rested it upon this 
enduring basis. The inevitable tendency to obscure the results of a truth, 
when the truth itself is forgotten or ignored, admonishes that the 
protection of so vital and fundamental a principle as the presumption of 
innocence be not denied, when requested, to any one accused of crime. The 
importance of the distinction between the two is peculiarly emphasized here, 
for, after having declined to [156 U.S. 432, 461] instruct the jury as to 
the presumption of innocence, the court said: 'If, after weighing all the 
proofs, and looking only to the proofs, you impartially and honestly 
entertain the belief,' etc. Whether thus confining them to 'the proofs,' and 
only to the proofs, would have been error, if the jury had been instructed 
that the presumption of innocence was a part of the legal proof, need not be 
considered, since it is clear that the failure to instruct them in regard to 
it excluded from their minds a portion of the proof created by law, and 
which they were bound to consider. 'The proofs, and the proofs only,' 
confined them to those matters which were admitted to their consideration by 
the court; and, among these elements of proof, the court expressly refused 
to included the presumption of innocence, to which the accused was entitled, 
and the benefit whereof both the court and the jury were bound to extend 
him.

In addition, we think the twenty-second exception to the rulings of the 
court was well taken. The error contained in the charge, which said, 
substantially, that the burden of proof had shifted, under the circumstances 
of the case, and that therefore, it was incumbent on the accused to show the 
lawfulness of their acts, was not merely verbal, but was fundamental, 
especially when considered in connection with the failure to state the 
presumption of innocence.

There are other objections specifically raised to certain particular counts 
in the indictment, which we do not deem it necessary to elaborately examine, 
but to which the condition of the case compels us to briefly allude. Thus, 
the first count charges the receipt and placing to the credit of the 
Indianapolis Cabinet Company of a bill of exchange amounting to a certain 
number of pounds sterling, followed by the averment that the company 
thereupon drew its check for said amount. It is contended that the check 
offered to show the payment of this money was for dollars and not for pounds 
sterling, and therefore there was a variance between the indictment and the 
proof. This contention, we think, is without merit. The count charged the 
misapplication of the sum of $5,802.84, and averred that the misapplication 
was [156 U.S. 432, 462] effected by taking the bill of exchange and paying 
out that amount; in other words, the whole context, we think, makes plain 
the charge that the sum which it avers to have been misapplied was credited 
as the result of taking the bill of exchange, and that it was this sum which 
was paid out upon the check of the cabinet company. Of course, it is 
immaterial at what rate or by what rule the pounds sterling were converted 
into current money. The sum of the misapplication was the amount stated as 
credited in consequence of having taken the bill of sterling exchange.

On the subject of the counts covering the charge of false entries in the 
books of the bank, the following requests were made and refused:

     'No. 18. In considering the false-entry charges in the
     indictment, it is necessary that you should know what
     constitutes a false entry. The books of account of a bank are
     kept for the purpose of accurately and truly recording the
     financial transactions of the bank. An entry upon the books of
     the bank of some alleged transactions which never occurred,
     or of a transaction which did occur, but which is falsely
     recorded, would be a false entry. But any entry in which that
     which has been done by the officers or agents of the bank is
     correctly set forth in detail is not a false entry. If, therefore, you
     find from the evidence, for instance, with reference to the
     alleged false entry in the 40th count, that the bank had actually
     given to the cabinet company the credit for $44,000 upon the
     paper presented by the cabinet company, and had authorized
     said cabinet company to make its checks against said credit,
     and that said entry was made upon the books simply as a
     truthful record of that which had been done, then the same was
     not a false entry, but was and is a true entry, and the
     indictment, so far as based upon such entry, cannot be
     sustained.

     'No. 19. If Mr. Haughey, as president of the bank, received
     from the cabinet company drafts, bills or notes which, by
     reason of the insolvency of the parties, or for any other reason,
     ought not to have been received, and gave to said cabinet
     company credit therefor, and afterwards caused [156 U.S. 432,
     463] an entry of such credit to be made upon the books of the
     bank, then whatever wrong was done in the matter by Mr.
     Haughey was not in causing such entry to be made, but was,
     further back, in receiving the paper and giving the credit. Not
     to have made the entry would have been to commit another
     wrong, since it was his duty as president of the bank, to see
     that the books should speak the exact truth as to that which he
     had caused to be done; and, however wrongful may have been
     his previous acts, the making of an exact and truthful record of
     the same in the books of the bank was and could be no crime,
     under this statute.'

While we consider the charges asked were in some respects unsound, yet the 
exception reserved to the charge actually given by the court was well taken, 
because therein the questions of misapplication and of false entries are 
interblended in such a way that it is difficult to understand exactly what 
was intended. We think the language used must have tended to confuse the 
jury, and leave upon their minds the impression that if the transaction 
represented by the entry actually occurred, but amounted to a 
misapplication, then its entry exactly as it occurred constituted 'a false 
entry'; in other words, that an entry would be false, though it faithfully 
described an actual occurrence, unless the transaction which it represented 
involved full and fair value for the bank. The thought thus conveyed implied 
that the truthful entry of a fraudulent transaction constitutes a false 
entry, within the meaning of the statute. We think it is clear that the 
making of a false entry is a concrete offense, which is not committed where 
the transaction entered actually took place, and is entered exactly as it 
occurred.

Judgment reversed and case remanded, with directions to grant a new trial.


