Sheridan

The plaintiff in error was convicted on two counts of an indictment which charged him with the violation of section 5209, Revised Statutes (section 9772, Comp. St. 1913), by abstracting and converting to his own use the moneys and funds of a national banking association, with intent to defraud the association and the depositor of the money.

[ 1 ] It is contended that the demurrer to the indictment should have been sustained on the ground that the plaintiff in error is therein charged with the unlawful abstraction and conversion of a special deposit. The contention that the deposits were special is based on the allegation contained in each count that the 'deposit which was alleged to have been abstracted and converted was a deposit made for the “sole use and benefit” of the depositor; and it is argued that to abstract and convert a special deposit is not an offense against the United States. But the allegation so referred to is not all that the indictment charges as to the nature of the deposits. It is also alleged in each count that the property abstracted and converted consisted of “certain moneys, funds and credits of the national banking association,” and that the depositor in…

(dissenting). The gist of the charge contained in count 1 of the indictment is that on the 7th day of March, 1911, the *314 defendant was president of the First National Bank of Roseburg, Or.,, a theretofore duly organized and established national banking association under the laws of the United States, doing business at the city of Roseburg, and that, being such president, the defendant on that day and at that ‘place willfully and unlawfully abstracted and converted to his own use, and to the use of one B. C. Agee, $230 from and out of the moneys of the bank “held by said national banking association, as a deposit for the sole use and benefit of one David Hull, a depositor and creditor of said the First National Bank of Roseburg, by means of a certain instrument designated as a memorandum check, without the knowledge and consent of said national banking association,” and with the intent to injure and defraud both the said bank and the said depositor.

The gist of the fourth count is that the defendant was, on the 15th day of April, 1911, president of the First National Bank of Roseburg, Or., theretofore duly organized and established under the laws of the United States and doing…