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Opinion of the Court.

States, or any officer thereof, knowing such claim to be false or fraudulent,” or “who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures or advises the making or use of, any writing, or other paper, knowing the same to contain any false or fraudulent statement,” shall, on conviction, be punished.

The specification under Charge IV alleged that the accused, as a disbursing officer of the United States, applied to a purpose not prescribed by law large sumns of public money intrusted to him, for river and harbor purposes, by causing them to be paid out by checks on false accounts, the payment being accomplished by the drawing and delivery of the checks directing payment to be made of moneys of the United States, and thus withdrew by means of checks, from the authorized depository, moneys for an unauthorized purpose, and applied them to unlawful purposes. The application, coupled with the payment and withdrawal of the funds by checks, constitated the embezzlement defined in section 5188, while the specific acts set forth in subdivisions one and four of the 60th article were distinct from the acts prohibited by section 5488. By the charge, the particular offence was laid in general terms, and by the specification the facts constituting the offence charged were stated. The specification bere set forth abstraction by fraudulent means of $230,749.90, and $315,000, moneys of the United States intrusted to the accused as a disbursing officer of the Government, but it was none the less malum prohibitum because it was also malum in se.

Nor are we persuaded by the ingenious argument of appellant's counsel that the crime alleged in this charge was covered by subdivision 9 of Article 60, because it was embezzlement of money

“furnished or intended for the military service," $ 5188, relating to the improper disposition of any public money. That subdivision denounces punishment on any person in the military service of the United States “ who steals, embezzles, knowingly and wilfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, sub

Opinion of the Court.

sistence stores, money, or other property of the United States, furnished or intended for the military service thereof.” Most of these enumerated classes of property are obviously military stores used for military purposes, and on the principle of noscitur a sociis all the classes designated fall into the same category. And this seems to be put beyond question by the words “ furnished or intended for the military service thereof." The military service as used in this connection means the land forces or the Army. The fact that money appropriated for river and harbor improvements is disbursed by an officer of the Army and the work supervised by the engineer force in the service of the government, does not make the moneys so appropriated moneys “furnished or intended for the military service," as the words are used in paragraph nine. This was the view of Lacombe, J., in holding the sentence supported by the conviction of the fourth charge. 97 Fed. Rep. 496. The Circuit Court of Appeals, without questioning the correctness of that conclusion, did not consider the question, because it sustained the sentence under the conviction of the first and second charges. The Circuit Court for the District of Kansas concurred in the conclusions of each of the other courts. We are of opinion that officers of the Army are in the eye of the law on military duty, although employed as such officers under statutes of the United States in the public service on duties not in themselves pertaining to the Army, and that the moneys disbursed by them when so employed do not because they are such officers become money furnished and intended for the military service.

Illustrations are found in the administration of appropriations for the Indian service, the Light House service, superintending the Washington aqueduct, maintaining the public grounds about the White House, and the like.

The appropriations made for river and harbor improvements are per se for the benefit of commerce and navigation, and not for military or naval purposes, and the money is furnished and intended for public works in aid of commerce.

In the exercise of the power to regulate commerce, Congress has repeatedly legislated in regard to the construction of river and barbor improvements in the navigable waters of the United States,

Opinion of the Court.

and enacted rules in relation thereto. The money made the subject of the embezzlement in this case was appropriated to be expended under the War Department by the act of Congress of June 3, 1896, (29 Stat. 202, c. 314,) entitled “An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,” and the act of June 4, 1897, (30 Stat. 11, 44, c. 2,) entitled “ An act making appropriations for sundry civil expenses of the government for the fiscal year ending June thirtieth, eighteen hundred and ninety-eight, and for other purposes.”

The status of Captain Carter was not changed by his detail to the charge of these improvements, and he was still subject to the military jurisdiction.

It is further argued that the specification was wrongly laid under Article sixty-two, because “the money was applied to a purpose prescribed by law,” and “the crime charged was not to the prejudice of good order and military discipline,”” but the contention is without merit.

The fact that the vouchers purported to be issued as against the appropriations for the improvement of the Savannah River and of Cumberland Sound, if these vouchers were false and falsely certified to, and if the accounts on which the moneys were paid were false, “the moneys not being due or owing from the United States to the parties paid or to any one else, and he, the said Captain Carter, well knowing this to be the case,” as stated in the specification, could not make the application of the money by that payment an application to a purpose prescribed by law.

We should suppose that embezzlement would be detrimental to the service within the intent and meaning of the article, but it is enough that it was peculiarly for the court martial to determine whether the crime eharged was “to thē prejudice of good order and military discipline.” Swaim v. United States, 165 U. S. 553; Smith v. Whitney, 116 U. S. 178; United States v. Fletcher, 148 U. S. 84.

In Swaim v. United States, which involved a sentence under the 62d article of war, Mr. Justice Shiras, delivering the opinion, said: “But, as the authorities heretofore cited show, this is the

Opinion of the Court.

very matter that falls within the province of courts martial, and in respect of which their conclusions cannot be controlled or reviewed by the civil courts. As was said in Smith v. Whitney, 116:U. S. 178, 'of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law. Under every system of military law for the government of either land or naval forces, the jurisdiction of courts martial extends to the trial and punishment of acts of military or naval officers which tend to bring disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in private business.'

The case has been argued with zeal and ability, and it has received the consideration which its importance demanded. If these observations have been extended beyond what was strictly required, that should at least serve to show that no material suggestion bearing on the disposal of this appeal has escaped attention.

But we must not be understood by anything we have said as intending in the slightest degree to impair the salutary rule that the sentences of courts martial, when affirmed by the military tribunal of last resort, cannot be revised by the civil courts save only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed.

Order affirmed.

MR. JUSTICE HARLAN did not hear the argument and took no part in the consideration and disposition of the case.

VOL. CLXXXIII-26

Statement of the Cause.

GUARANTEE COMPANY OF NORTH AMERICA v. MECHANICS' SAVINGS BANK AND TRUST COMPANY.

CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR

THE SIXTH CIRCUIT.

No. 48. Argued April 23, 24, 1901. - Decided January 6, 1902.

aware

Where a bond insuring a bank against such pecuniary loss as it might sus

tain by reason of the fraudulent acts of its teller, contained a provision that the company would notify the insuring company on becoming

of the teller “being engaged in speculation or gambling," it is the duty of the bank to give such notice, when informed that the teller is speculating, although, while confessing the fact of speculating, he as

serts that he has ceased to do so. When the teller is in fact engaged in speculation and the bank is so in

formed, it cannot recover on such a bond for losses occurring through his fraudulent acts after the information is received, when it has not no. tified the company of what it has heard, or made any investigation, but has accepted the teller's assurance of present innocence as sufficient, on

the mere ground that it had confidence in bis integrity. When at the time the teller's bond was renewed, the books of the bank

showed that he was a defaulter in the sum of $19,600 understated liabilities, and of $3765.44 abstracted from bills receivable, both of which could have been detected by the taking of a trial balance or a mere comparison between the books kept by him and the individual ledger kept by another person, and by a correct footing of the notes, the bank is open to the charge of laches, and a certificate that the accounts of the

teller had been examined and verified is not truthful. Where it is known to the president of the bank that the insuring company

regards engagement in speculation as unfavorable to an employés habits, and he is informed that the employé is speculating, a representation by the president that he has not known or heard anything unfavorable to the employé's habits, past or present, or of any matters concerning him, about which the president deems it advisable for the company to make inquiry, is a misrepresentation.

This was a bill in equity brought by the Mechanics’ Savings Bank and Trust Company for the use of J. J. Pryor, assignee, against the Guarantee Company of North America, for an accounting and for a decree for the amount alleged to be due

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