Opinion of the Court.

State and completed in another, the United States court in the latter State has jurisdiction over the prosecution of the offender.

The proof of guilt in this case was sufficient to warrant the court in leaving to the jury to decide the question of the guilt of the accused. The sentence on both counts having been distinct as to each, the entire amount of punishment imposed will be undergone, although the conviction and sentence as to the second count are set aside.

THIS case having been submitted, the court ordered the judg ment below to be affirmed. Subsequently, that judgment was vacated. The case is stated in the opinion.

Mr. Frank S. Streeter for plaintiff in error.

Mr. Solicitor General for defendant in error.

MR. JUSTICE WHITE delivered the opinion of the court.

This is a writ of error to obtain a reversal of a judgment of the Circuit Court of the United States for the District of New Hampshire, entered on a verdict of a jury, finding the defendant guilty upon the second and seventh counts of an indictment which alleged violations of the provisions of section 5209 of the Revised Statutes.

The indictment originally consisted of ten counts. A demurrer to counts 3, 5 and 8 was sustained. Upon the trial, at the close of the evidence for the prosecution, counts 4, 6, 9 and 10 were withdrawn from the consideration of the jury, and the case was submitted to them on counts 1, 2 and 7. Counts 1 and 2 covered the same transaction, count 1 charg ing an embezzlement, while count 2 charged an unlawful abstraction of the same property.

The second count charged the defendant, as president of the "National Granite State Bank," with having, on July 26, 1893, at Exeter, New Hampshire, unlawfully abstracted and converted to his own use certain described bonds and obligations, the property of said association.

The seventh count charged that the defendant, while president as aforesaid, and at the place aforesaid, did, between January 1, 1893, and July 15, 1893, “unlawfully and wilfully, and without

Opinion of the Court.

the knowledge and consent of said association, and with intent to injure and defraud said association, abstract and convert to his own use the moneys, funds and credits of the property of said association, to wit, forty thousand dollars of the moneys, funds and credits of said association, a more particular description of which moneys, funds and credits is to the said jurors unknown." Before the trial, a statement of the items upon which the government intended to rely for a conviction under the seventh count was furnished, by the district attorney, to counsel for the accused, and the court limited the evidence with reference to that count to matters embraced in the list. The specification referred to fifteen sums, each of which was stated to have been drawn by the accused upon checks signed by him, in the name of the bank as its president, and made payable to the order of the American Loan and Trust Company of Boston, or to the order of H. N. Smith on the National Bank of Redemption, a banking institution located and doing business at Boston. The checks were delivered by the defendant to the payees thereof in Boston in return "for cash or funds in the form of checks or drafts" handed to him in Boston, and the checks were paid by the Boston bank on whom they were drawn.

A motion in arrest of judgment having been overruled, the court, on January 31, 1895, separately sentenced the defendant on each count to five years imprisonment in the stateprison at Concord, but ordered that the imprisonment under the seventh count should be concurrent with that under the second count.

The errors assigned are eighteen in number. In addition a second writ of error was sued out, and on this writ errors were assigned relating solely to the validity of the sentence imposed. This second writ was separately docketed and numbered in this court. We are relieved from considering the legality of this second writ, as well as the soundness of the errors thereon assigned, as all the matters complained of thereon were abandoned on the hearing.

Of the eighteen assignments of error, four (Nos. 7, 8, 11 and 18) are not pressed by counsel, and need not be reviewed.

VOL. CLXII--44

Opinion of the Court.

Ten assignments (Nos. 1 to 6 and 13 to 16) affect both of the counts upon which conviction was had, and relate to an asserted variance between the name of the bank alleged in the indictment to have been defrauded and the name established by the proof. Assignment No. 9 affects the second count alone, and alleges error in permitting a witness for the prosecution, upon his direct examination, to refresh his memory in a manner claimed to be illegal. Assignment No. 10 alleges error in the sustaining of objections to questions as to the amount of stock of the bank owned by the defendant during the period when the alleged unlawful acts referred to in the seventh count were committed, while assignments Nos. 12 and 17 attack the jurisdiction of the court over the offence set forth in the seventh count.

We will consider the questions which arise from these assignments in the order in which they have just been mentioned.

1. Variance asserted to exist between the name of the bank charged in the indictment and the name as established by the proof.

The bank alleged to have been defrauded was referred to in the indictment as "a certain national banking association, then and there known and designated as the National Granite State Bank, which said association had been heretofore created and organized under and by virtue of the laws of the United States of America, and which said association was then and there acting and carrying on a national banking business at the city of Exeter under the laws aforesaid."

The evidence offered proved that the authorized name of the bank was the National Granite State Bank of Exeter, the omission of the words "of Exeter" being, therefore, the variance relied on. The court held that this was not material, if the bank carried on its business and was as well known by the one name as the other.

The text writers state the rule to be that where the name of a third person is used in an indictment, it must be proved as laid. (Whart. Crim. Ev. sec. 102a; 1 Bish. Crim. Proc. sec. 488, sub. 3, and sec. 667, sub. 3.) Many authorities illustrating this rule are referred to in the brief of counsel. We

Opinion of the Court.

notice only the two cases principally relied on, to wit: MeGary v. People, 45 N. Y. 153, and Sykes v. People, 132 Illinois, 32. Both of these cases are in conflict with Commonwealth v. Jacobs, 152 Mass. 276, in which last case the rule is laid down as declared by the trial court in the case at bar. However, the case now before us is distinguishable from that presented in McGary v. People, and Sykes v. People, supra, from the fact that the variance relied on in those cases was in an integral part of the name proper, whilst here it consists simply in the omission of the words "of Exeter," which, whilst a part of the name, would be commonly understood as referring only to the place of business of the corporation. A case precisely in point is Rogers v. State, 90 Georgia, 463, where a railroad company was referred to in an indictment by the name under which it usually transacted business, and it was held, in a well reasoned opinion, that the omission of the words. "of Georgia" at the close of the designated name of the company was not a fatal variance.

In the indictment at bar, the accused was charged as president of the bank, and it was alleged that the institution carried on business at Exeter. It is impossible, therefore, to suppose that the omission of the words "of Exeter" could have in any way misled the defendant, or failed to convey to his mind what bank was intended to be referred to. It is manifest, therefore, that the omission could not have operated to his prejudice. These views dispose of assignments from 1 to 6.

2. Error averred to have been committed by the court in permitting the prosecution to refresh the memory of a witness, called by it, by reference to certain testimony previously given by the witness before the grand jury.

The ruling of the court from which this error is asserted to have resulted was made during the examination in chief of C. M. Dorr, a witness for the prosecution. He was a bank examiner, and was being questioned as to the whereabouts of certain bonds referred to in the second count of the indictment. The testimony of the witness was important, and the matter as to which he was being examined had a direct bear

Opinion of the Court.

ing upon the guilt or innocence of the accused. The bill of exceptions discloses what took place at the time of the ruling, as follows:

"Q. Did he ever, at any time, tell you what he had done with these bonds?

"A. Not that I now recollect.

"Mr. Branch: I propose to ask this witness a leading question, because I am taken by surprise at his answer. I have his testimony before the grand jury, and I wish to ask him if he did not testify to certain things before the grand jury. "The Court: You may do that.

"Mr. Streeter: To that I object and except.

"The Court: It is a matter of discretion with the court to allow counsel on either side who say they are surprised to ask such question. It is not a matter of exception.

"By Mr. Branch:

"Q. (Referring to minutes, and apparently reading for the purpose of putting the question.) Do you now recollect that you testified before the grand jury that when you discovered those bonds were gone you went to Boston and learned that Mr. Putnam had them, and that he acknowledged to you he had those bonds on the 3d day of August? Did you not so testify before the grand jury?

"A. If it is a matter of record, I suppose that it is so. Mr. Putman done considerable of the business by letters.

"Q. I am asking if you did not so testify before the grand jury?

"A. If it is a matter of record, I do not dispute the record. "Q. Do you not recollect that fact that you asked him what he had done with them?

"Mr. Streeter: I still object and except to this because it is the record taken before the grand jury and should not be introduced here; it is improper and I object to it.

"The Court: I do not think you ought to say it is improper after the court has ruled that it is.

"Mr. Streeter: I beg your honor's pardon; I did not understand that you had ruled on this point.

"The Court: It is a thing often done, and when counsel say