Before GOODRICH, KALODNER and STALEY, Circuit Judges.
Regis Gary Tornabene and Jacob Joseph Caplan have appealed judgments of conviction entered against them after separate trials in the Federal District Court for the Western District of Pennsylvania. The appeals are treated in one opinion since an identical question of law governs our decision in both cases.
Both appellants moved to quash their respective indictments for failure to state an offense. Each appellant contends that the refusal to quash the indictment was error.
Caplan's indictment contained six counts. He was convicted on the first five counts and acquitted on the sixth. Tornabene was indicted and convicted on ten counts. Count 1 of the Caplan indictment, which is typical*fn1 in all essential respects to all counts in both indictments, reads as follows:
"The Grand Jurors charge:
"1. That on the dates specified in the second paragraph of each of the counts of this indictment, at Cecil, in the County of Washington, in the Western District of Pennsylvania, one John Felix Wagner, deceased, who is not indicted and who is not a defendant herein, was an officer, agent and employee, to wit, Vice-President and Cashier, of the First National Bank in Cecil, Cecil, Pennsylvania, a national bank, which said national bank had been theretofore created, organized and established, and was then and there existing and conducting the business of banking under the laws of the United States at Cecil, Pennsylvania, and defendant Jacob Joseph Caplan, having aided and abetted the said John Felix Wagner, deceased, who is not indicted and who is not a defendant herein, in committing an offense against the United States, is a principal herein under the provisions of Section 2 of Title 18 of the United States Code.
"2. That on and about the 6th day of June, A.D.1950, at Cecil, in the County of Washington, in the Western District of Pennsylvania, the said Jacob Joseph Caplan, being a principal defendant herein, as heretofore set forth, unlawfully, knowingly and fraudulently, and with intent to injure and defraud said national bank, did willfully misapply certain of the moneys, funds and credits of said national bank to the amount and value of $3,187.33 in the manner and by the means following: The said John Felix Wagner, deceased, who is not indicted and who is not a defendant herein, being then and there Vice-President and Cashier of said national bank as aforesaid, and by virtue of the power, control, direction and management which the said John Felix Wagner possessed over the affairs of said national bank, and the said Jacob Joseph Caplan, being a principal herein, did then and there pay and cause to be paid from and out of the moneys, funds and credits of said national bank a certain check No. 160, dated May 30, 1950, in the amount of $3,187.33, drawn on said national bank by Jacob J. Caplan, payable to the American Steel and Wire Company, said check being made out on a check form of the National Paper and Supply Company, being a company operated by said defendant and others, the account being carried in and with said national bank as 'Caplan's, Jacob J. or David B. Caplan'; that is to say, the said check in the amount of $3,187.33 was presented to the National City Bank of Cleveland, Ohio, and was returned to said national bank for collection by the Pittsburgh Branch of the Federal Reserve Bank of Cleveland in a remittance letter dated on or about June 2, 1950, and which said check was not on said date, to wit, June 6, 1950, or any subsequent date, charged against the account of Caplan's, Jacob J. or David B. Caplan, in and with said national bank, which said account at that time did not have sufficient credit balance to cover and pay same, and the said national bank was not secured, repaid or reimbursed in any manner whatsoever for the repayment of said check; and thus and in the manner aforesaid, the said sum of $3,187.33 was wholly withdrawn from and lost to said national bank, and the said moneys, funds and credits were then and there appropriated and converted to the use, benefit and advantage of the said defendant and divers other persons to the Grand Jurors unknown, all of which he, the said defendant, then and there well knew. (Section 656, Title 18, U.S.Code.)"
The government contends that the above can be read to charge either a violation of Section 656, Title 18, U.S.C.*fn2 or a violation of Section 2(a), Title 18 U.S.C.*fn3
We will first consider whether Count 1 charges a crime under Section 656. That section distinctly limits the class of persons who can violate its provisions, i.e., officers, directors, agents, employees, etc.See United States v. Weitzel, 1918, 246 U.S. 533, 38 S. Ct. 381, 62 L. Ed. 872. The government concedes this much. It is not alleged that either Caplan or Tornabene fall within any of the designated classes. But this does not end the matter, according to the government.
The government says that since Section 2(a) is not confined to a limited class, both Caplan and Tornabene were capable of aiding and abetting in a violation of Section 656. So far, the government is correct, Coffin v. Inited States, 1895, 156 U.S. 432, 15 S. Ct. 394, 39 L. Ed. 481, and with this phase of the government's theory, the appellants agree.
The government then argues that if A can commit a crime by aiding and abetting B in doing an act, it is sufficient to indict A for doing the principal act, even if at trial the proof shows that A only aided and abetted in the commission of the act which constituted the crime. As an abstract principle, this is good law, and we have been referred to many cases relied upon by the district court and cited by the government, i.e., United States v. Klass, 3 Cir., 1948, 166 F.2d 373; Von Patzoll v. United States, 10 Cir., 163 F.2d 216, certiorari denied 1947, 332 U.S. 809, 68 S. Ct. 110, 92 L. Ed. 386; DiPreta v. United States, 2 Cir., 1920, 270 F. 73.
But there is a distinct and essential difference between this case and those to which we have been referred. In all those cases, the defendant was capable of committing the crime as well as aiding and abetting in its commission. Thus, an indictment against A for mail fraud is valid because it charges a crime, and it is well settled that no fatal variance occurs if only aiding and abetting another in committing mail fraud is proved at trial, since an aider and abettor can be treated as the principal. The theory of this doctrine is sound, because if a grand jury has indicted A for mail fraud, the grand jury has charged a crime, and the indictment on its face is good.
But here, if the indictments are read as charging Caplan and Tornabene with willful misapplication of bank funds, no federal crime is charged. They alone cannot violate Section 656, as it is not alleged that they ...