Cross v. North Carolina/Opinion of the Court

by by John Marshall Harlan

United States Supreme Court

132 U.S. 131

Cross  v.  North Carolina

The plea in abatement was evidently drawn with reference to section 5209 of the Revised Statute, tit. 'National Banks.' That section provides, among other things, that 'every president, director, cashier, teller, clerk, or agent of any association * * * 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 disdemeanor, and shall be imprisoned not less than five years, nor more than ten.'

It is contended that the courts of the United States have exclusive jurisdiction to try the defendants for having made the false entries on the books of the bank, with the intent stated in the plea; that the forgery in question is an integral, essential element in such entries, which were false only because based upon the forged notes; that the defendants cannot be tried for the false entries after being tried for the forgery; the state court to try them for the latter offense will defeat the jurisdiction of the federal court to try them for the former offense. In other words, that, where exclusive jurisdiction is given to the courts of the United States to try an offense, the state court cannot exercise jurisdiction in respect to any particular act constituting an essential ingredient of that offense, although the commission of such act is made a crime against the state.

The fallacy, of this argument is in assuming that the offense described in section 5209 of the Revised Statutes, namely, the making, by an officer or agent of a national banking association, of a false entry in its books, reports, or statements, with intent to injure or defraud the association or others, or with the intent to deceive its officers, or any agent appointed to examine its affairs, necessarily involves the crime of forgery, of which the defendants were found guilty. If the notes in question had not been forged, but, with or without the consent of the obligors, had been temporarily placed by the defendants among the assets of the bank, and entered upon its books, when they were not its property, with intent to deceive the agent appointed to examine its affairs, they could have been punished under section 5209. On the other hand, the crime defined in section 1029 of the Code of North Carolina would have been complete if the defendants simply made and forged, or caused to be made and forged, or willingly assented to the making or forgery of, the notes described in the indictment, with intent to defraud, and did not follow it up by committing the crime against the United States of making false entries in respect thereto upon the books of the bank, with the intent to deceive the agent designated to examine its affairs. The crime against the state could not be excused or obliterated by committing another and distinct crime against the United States.

It is also contended that the crime of forgery, as defined in the Code of North Carolina, and described in the indictment, is made, by section 5418 of the Revised Statutes, an offense against the United States; and that, as the courts of the United States are invested with exclusive jurisdiction 'of all crimes and offenses cognizable under the authority of the United States,' (Rev. St. § 711,) the judgment must be reversed. This position cannot be sustained. Section 5418 of the Revised Statutes makes it an offense against the United States for any person to falsely make, alter, forge, or counterfeit 'any bid, proposal, guaranty, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States,' or to utter or publish as true 'any such false, forged, altered, or counterfeited bid, proposal, guaranty, official bond, public record, affidavit, or other writing, for such purpose, knowing the same to be false, forged, altered, or counterfeited,' or to transmit to or present at 'the office of any officer of the United States any such false, forged, altered, or counterfeited bid, proposal, guaranty, official bond, public record, affidavit, or other writing, knowing the same to be false, forged, altered, or counterfeited, for such purpose.' See, also, section 5479.

We do not think that the crime of which the defendants were found guilty is within either the words or scope of section 5418. The object of that section was to protect the general government against the consequences that might result from the forgery, alteration, or counterfeiting of documents, records, or writings that had some connection with its business, as conducted by its own officers. The false making or forging of promissory notes or other securities, purporting to be executed by individuals, and made payable to or at a national banking association, cannot be said to have been done 'for the purpose of defrauding the United States,' and to constitute the offense described in section 5418. Such an act may be in fraud of the bank, or of its stockholders; but is not in itself, or within the meaning of that section, a fraud upon the United States.

The argument in behalf of the plaintiffs in error fails to give effect to the established doctrine that the same act, or series of acts, may constitute an offense equally against the United States and the state, subjecting the guilty party to punishment under the laws of each government. This doctrine is illustrated in U.S. v. Marigold, 9 How. 560, 569; Fox v. Ohio, 5 How. 410, 433; Moore v. Illinois, 14 How. 13, 19; and Ex parte Siebold, 100 U.S. 371, 390-in the first of which cases it was said that 'the same act might, as to its character and tendencies, and the consequences it involved, constitute an offense against both the state and federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each.' If it were competent for congress to give exclusive jurisdiction to the courts of the United States of the crime of falsely making or forging promissory notes, purporting to be executed by individuals, and made payable to or at a national bank, or of the crime of uttering or publishing as true any such falsely made or forged notes, it has not done so. Its legislation does not assume to restrict the authority which the states have always exercised of punishing in their own tribunals the crime of forging promissory notes, and other commercial securities, executed by private persons, and used for purposes of private business. The forgery of such instruments is none the less injurious to the welfare of the people of a state because they happen to be made payable to or at banking associations which come into existence under the authority of the United States. If the punishment by the state of the crime of forgery, of which the defendants were found guilty, leaves them exposed to punishment by the United States for having made false entries upon the books of the bank of which they were officers, with the intent to deceive the agent appointed by the general government to examine its affairs, it results from the fact that they are amenable to the laws of the United States, as well as of the state of North Carolina, and may be subjected to punishment for violating the laws of each government. The forgery may have been committed in order that the instrument forged might thereafter become the basis of false entries upon the books of the bank. But that circumstance cannot defeat the authority of the state, charged with the duty of protecting its own citizens, from punishing the forgery as in itself a distinct, separate offense, committed within its limits and against its laws.

The remaining assignment of error relates to what occurred when the jury were brought into court, and the fact disclosed, by polling them, that they were agreed upon a verdict of guilty under the first and second counts of the indictment, but could not agree as to the third and fourth counts. Thereupon the attorney for the state, in the presence of the jury, proposed to enter a nolle prosequi as to the third and fourth counts. The jury having been sent out, the court permitted a nolle prosequi upon those counts to be entered. Of this fact the jury were informed, and, being instructed to pass only on the remaining counts, they retired, and returned into court a verdict of guilty in manner and form as charged in the indictment. The supreme court of the state expressed its disapproval of the mode adopted for ascertaining the individual opinion of each juror before an agreement had been reached by the entire body, but held that the entry of a nolle prosequi as to the third and fourth counts was, in legal effect, a consent to the acquittal of the defendants in respect to the offenses therein named, and therefore did not work any injury to them. It also held that, in accordance with the principles of previous decisions in that court, the general verdict would be restricted to such of the counts as the jury were directed to pass on. We are of opinion that there was nothing in all this amounting to a deprivation of the liberty of the defendants without due process of law. At most, it was a mere error in procedure or practice that did not affect the substantial rights of the accused. What was permitted to be done was to the end, simply, that the jury might return a verdict upon those counts in the indictment upon which they were agreed. Judgment affirmed.

Notes