UNITED STATES V. COOK, 84 U. S. 168 (1872)

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U.S. Supreme Court

United States v. Cook, 84 U.S. 17 Wall. 168 168 (1872)

United States v. Cook

84 U.S. (17 Wall.) 168


1. Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, an indictment founded upon the statute must allege enough to show that the accused is not within the exception. But if the language of the section defining the offense is so entirely separable from the exception, that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the indictment may omit any such reference. The matter contained in the exception is matter of defense, and to be shown by the accused.

2. No exception or proviso of any kind is contained in the Act of Congress of August 6, 1846, 9 Stat. at Large 63, making a paymaster in the army who embezzles public money guilty of felony.

3. Therefore a statute of limitations cannot be taken advantage of by demurrer.

4. The 32d section of the Act of April 30, 1790 (sometimes called the Crimes Act) enacts the only limitation applicable to the offense of a paymaster of the army indicted for embezzling the public money.

The 16th section of the Act of August 6, 1846, [Footnote 1] enacts:

"That all officers and other persons charged . . . with the safekeeping, transfer, and disbursement of the public moneys . . . are hereby required to keep an accurate entry of each sum received and of each payment or transfer, and that if anyone of said officers . . . shall convert to his own use . . . any portion of the public moneys entrusted to him for safekeeping, disbursement, or transfer, . . . every such act shall be deemed to be an embezzlement of so much of the said moneys as shall be thus . . . converted, . . . which is hereby declared a felony, . . . and any officer or agent of the United States convicted thereof shall be sentenced to imprisonment for a term of not less than six months nor more than ten years and to a fine equal to the amount of the money embezzled. "

Page 84 U. S. 169

The 32d section of an Act of April 30, 1790, [Footnote 2] entitled "An act for the punishment of certain crimes against the United States," thus enacts:

"No person shall be prosecuted, tried, or punished for any offense not capital unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offense &c. Provided that nothing herein contained shall extend to any person or persons fleeing from justice."

The 3d section of an act of 1804, [Footnote 3] entitled "An act in addition to the act entitled," &c. (as above), thus further enacts:

"Any person or persons guilty of any crime arising under the revenue laws of the United States . . . may be prosecuted, tried, and punished, provided the indictment . . . be found at any time within five years after committing the offense, any law or provision to the contrary notwithstanding."

These statutes being in force, one Cook was indicted in the court below at October Term 1864, for the embezzlement of funds held by him as paymaster in the army of the United States.

The indictment was filed on the 1st of November, 1864, and the first five counts charged acts of embezzlement on the 1st of May, the 6th of July, the 15th of October, the 12th of September, and the 20th of September, in the year 1862.

The defendant demurred to these counts, because it appeared upon the face of them, severally, that the crime charged was committed more than two years before the finding and filing of the indictment, and that the prosecution therefor was, before the finding and filing of the indictment, barred by the statute in such cases made and provided.

Three questions now arose on which the judges were opposed in opinion, and which they accordingly certified for answers by this Court:

First. Whether it was competent for the defendant to take

Page 84 U. S. 170

exception, by demurrer, to the sufficiency of the first five counts of the indictment for the causes assigned.

Second. Whether the said five counts, or either of them, allege or charge, upon their face, any crime or offense against the defendant for which he is liable in law to be put upon trial, convicted, and punished. [Footnote 4]

Third. Whether the 32d section of the Act of 1790, sometimes called the Crimes Act, applied to the case, and limited the time within which an indictment must be found for such an offense, or whether in regard to the period of limitation, within which an indictment was to be found, the case was governed by the Act of 1804, or any other act limiting the prosecution of offenses charged in the said five counts.

Page 84 U. S. 171

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