United States v. Carl H. Wiggenhorn

This case arises upon an appeal taken by the United States of America from an order of the district court granting the motion of Carl H. Wiggenhorn, appellee, to dismiss Counts One, Two, Three and Four contained in an indictment in which appellee was charged with willful1 misapplication of bank funds, in violation of 18 U.S.C. § 656 , and from a later order of the district court denying appellant’s motion to vacate the earlier order dismissing said Counts One, Two, Three and Four.

Title 18 U.S.C. § 656 , in relevant part, provides:

Omitting title of court and cause, the indictment, in Count One, charged as follows:

Counts Two, Three and Four of the indictment are in similar language except as to dates, names of banks upon which checks were drawn, the accounts upon which drawn, and the amounts of the checks. The following table is a sum-marization of the variations appearing in Counts Two, Three and Four:

The law appears to be well settled that an indictment charging that a defendant willfully misapplied the moneys, funds or credits of a bank which is in the category of banks designated in 18 U.S.C. § 656 in violation of such Section is fatally defective unless it contains…