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company, as well as of the Flickinger Wheel Company, stated on his direct examination that these notes were renewals, but was forced to admit later that they were not. There is nothing to show they were given for any bona fide indebtedness. It is clear they were used simply to secure more money from the bank, and at a time when (as the jury might well have found from the evidence) both companies were wholly insolvent.
The claim is made that, when the proceeds of the drafts and notes covered by these counts were passed to the credit of the Flickinger Wheel Company, that concern was overdrawn, so that no additional funds were secured from the bank. This is a mistake. On October 1, 1903, when $23,496.28, the proceeds of the discount of the Vehicle Wheel Club drafts covered by count 38 was passed to the credit of the Flickinger Wheel Company, that corporation had a balance of $12,077.13 in the bank. In addition to the discount mentioned, it was credited that day with deposits amounting to $4,998.50, making a total in the bank of $40,571.91. That day it checked out $19,644.13, leaving at the close of business to its credit $20,927.78. So it got the benefit that day of those discounts.
The other Vehicle Wheel Club drafts, covered by counts 40, 41, 42, and 43, along with two other Vehicle Wheel Club drafts, one for $6,000 and one for $5,000, were discounted and passed to the credit of the Flickinger Wheel Company on December 23, 1903. At the beginning of business on that day, the Flickinger Wheel Company was overdrawn $27,279.07. The proceeds of the discount of these six drafts amounted to $32,767.24. There were two deposits on that day, one for $1,000 and one for $3,175.61. The total deposits, therefore, amounted to $36,942.85. There was checked out on that day, $36,014.16, leaving $928.69 to apply on the overdraft of $27,279.07, which reduced it to $26,350.38. It is apparent, therefore, that on that day the Flickinger Wheel Company received the full benefit of the discount of these drafts, and the bank was left with substantially the same overdraft as before.
At the beginning of business on February 2d, the date of the discount of the Galion Wagon & Gear Company notes, aggregating $15,000, the Flickinger Wheel Company was overdrawn $12,483.87. The proceeds of these notes amounted to $14,419.50, which left the company with a balance in bank of $1,935.63. Of this balance it checked out on February 2, $780.15, and the next day again overdrew; so that, on February 2d, while it did not get the benefit of all, it did of part, of the proceeds of the discount of these notes.
The conclusion we reach with respect to this contention is that it is not supported by the facts of record. We do not need to pass upon the question of law sought to be raised, namely, whether the offense of misapplication would be complete if the proceeds of the discounts were passed to the credit of the company, and never drawn out; the worthless paper being merely substituted for the equally worthless overdrafts.
The final claim is made that the verdict of the jury is repugnant and inconsistent, because count 45, on which the jury returned a verdict of not guilty, was based on the four drafts covered by counts 40, 41, 42, and 43, along with two others, and because counts 51 and 52, upon which there was a verdict of not guilty, covers two of the notes set forth in count 50 on which there was a verdict of guilty. An examination of the record shows that the forty-fifth count charges a misapplication of the proceeds of six Vehicle Wheel Club drafts. These six drafts were separately covered by counts 40, 41, 42, and 43, upon which there was a verdict of guilty, and by counts 39 and 44, upon which there was a verdict of not guilty. The jury very properly, therefore, found a verdict of not guilty upon the forty-fifth count. The fifty-first and fifty-second counts being based on two of the twelve notes covered by count 50, the jury quite correctly brought in a verdict of not guilty on them, since the verdict of guilty on count 50 covered all twelve notes. In doing this the jury followed the instructions of the court when it said:
“It will not be necessary for you to return verdicts of guilty both upon the counts based upon the separate instruments and the counts where all are joined in a single count.”
We find nothing repugnant or inconsistent in the verdict. Our attention is called in a general way to the refusal of the court to give the special requests presented by the defense, and to certain portions of the charge as given. The requests which were proper and pertinent were either given as requested or covered by the general charge, and counsel has not been able, in our opinion, to point out any portion of the charge excepted to at the time which was erroneous.
The judgment is affirmed.
rrer to the indictment, and the charge to the jury: TAYLER, District Judge. The indictment in this case contains 52 counts. The defendants have filed a demurrer to all of the counts of the indictment, alleging different grounds, according to the character of each. All of the counts are based on section 5209 of the Revised Statutes of the United States (U. S, Comp. St. 1901, p. 3497]. The first, second, and third counts charge the defendant Hays, president of the Galion National Bank, with unlawfully issuing and putting forth, as such officer, a certain certificate of deposit, without the authority of the board of directors, with intent to injure and defraud the bank, and charge the defendant Flickinger with aiding and abetting Hays in the same transaction. Counts 32, 33, 34, 35, and 36 are of the same character as 1, 2, and 3, except that bills of exchange, instead of certificates of deposit, were issued.
The claim is made by the defendants that the offense is not described sufficiently, and that the averments of the several counts do not constitute a crime; and especial stress is laid upon the fact that it nowhere appears in these counts how any misapplication of funds occurred, or that the bank lost any money by reason thereof. It is sufficient to say that the allegations are in the language of the statute, and that they describe the particular act which is claimed to be unlawful. The general averment that it was done with intent to injure and defraud the bank is sufficient to complete the criminal act.
The demurrer objects to counts 11 to 16, inclusive, and to counts 37 to 45, inclusive, which relate to the discount of notes and drafts by the defendants; the notes and drafts being unsecured, and the makers and indorsers of them known to be insolvent. Objection is made that there is no averment that Hays discounted this paper without the knowledge and consent of the board of directors. I do not think this averment necessary, and it would not be less criminal, done with the knowledge and consent of the board of directors, if the defendants and the board of directors did it under the circumstances which the indictment avers existed in connection with the action of the defendants.
It appears, from the averments of these counts, that the defendant Hays misapplied money and funds of the bank by discounting these notes. Counts 12, 13, 14, 15, 16, 46, 47, and 48 charge misappropriation by the discounting of worthless paper and placing the same to the credit of the Flickinger Wheel Company; but it is insisted that, because there is no charge that the money was withdrawn from the bank, the bank did not suffer, and no crime was committed. It may be that such an act is not criminal under section 5209, but I am constrained to believe the contrary. Such seems to be the effect of the decision of the court in Rieger . United States, 107 Fed. 916, 47 C. C. A. 61, and reasons additional to those given by the court in that case occur to me why the criminal act is completed when a note known to be worthless is passed to the credit of a depositor. The fund is then subject to the order of the depositor, and it may or may not be withdrawn; but, until by some act of repentence on the part of the guilty official, or by some act of vigilance on the part of some other official, the credit is withdrawn, its amount remains as absolutely subject to the control of the depositor as if the credit was in all respects unimpeachable.
The objection to the remaining counts is covered by the objection made to some of the other counts—that there is no averment that the misapplication or misappropriation of the funds was done without the knowledge and consent of the association or its board of directors. On this point I have already indicated my opinion. The demurrer is therefore overruled.
Charge to Jury. I feel that, as you have listened to the proceedings of the trial of this case thus far with the patience and intelligence which its importance requires, you will proceed now to the final work which you have to do in respect to it under the direction of an enlightened conscience and all the powers of mind which you possess; and in so doing I do not doubt at all but that you will arrive at a conclusion satisfactory to your judgment and to your conscience. There is no other tribunal or arbiter that you are called upon to satisfy. A conclusion which to yourself, honestly and intelligently considering the whole case, is satisfactory, is the only conclusion and the best conclusion which the law expects jurors to come to.
The indictment in this case, in 52 counts, charges that Otho L. Hays, while and as president of the Galion National Bank, of Galion, Ohio, committed certain offenses against the law of the United States, at Galion, in this division and district, between the 9th day of June, 1903, and the 13th day of February, 1904.
These crimes, so charged are of varied character, and will be more fully described and commented upon as I proceed with this charge. In all of these counts, the defendant Edward Flickinger is charged with aiding and abetting Otho L. Hays in the commission of each of the offenses at the time and place stated.
Before proceeding to a more definite statement of these offenses, and of the rules by which you are to be controlled in a consideration of the facts, it will be advantageous to lay down a few general propositions which affect your determination of the questions submitted to you. You know, of course, gentlemen, that the law applicable to this case, determining the construction and effect to be put upon the facts, is given to you wholly by the court. What the facts are is to be determined by you. If it should appear, at any time during this charge, that the court seems to have an opinion as to what a fact is or what the facts are, you will understand that that apparent conclusion or state of mind of the court is not at all to weigh with you in determining what the facts are. In the federal court, the court has a right to his opinion, and he may, and sometimes does, express it, on the facts; but that does not at all exclude, nor must it interfere with, the province of the jury to determine for yourself what the facts really are.
As I have said, the defendant Otho L. Hays is charged with the commission of the several offenses, and the defendant Edward Flickinger is charged with aiding and abetting Hays in their commission. An "aider and abettor” is one who advises, counsels, procures, or encourages another to commit a crime, whether personally present or not at the time and place of the commission of the offense; and the defendant Flickinger would be guilty under any count of this indictment if the jury found that Hays had committed the offense charged in the count and that Flickinger had advised, counseled, procured, or encouraged Hays to commit the crime. You will observe, from this definition of aiding and abetting, that the defendant Flickinger could not be convicted of aiding and abetting Hays, if Hays himself was not guilty of committing the crime in the commission of which it is charged that Flickinger aided and abetted ; and, of course, it might be that Hays was guilty of committing one of the crimes charged in the indictment, and Flickinger not guilty of aiding and abetting him. The answer to both of these questions depends wholly upon the testimony in the case. In consequence of this rule of law, defining the relations between the principal and one who aids and abets him, it may be that the language of my charge will seem to be directed chiefly to the elements that constitute the commission of the crime by the principal. So that will not mislead you.
In considering the evidence and in your endeavor to arrive at a conclusion as to the guilt or innocence of the defendants, or either of them, you will constantly bear in mind that the mere fact that an indictment has been found against them is not accompanied by any presumption whatever that they are guilty. These defendants, like all defendants in criminal cases, are presumed to be innocent until the contrary appears by proof that satisfies the jury beyond a reasonable doubt that they are guilty. This presumption of innocence, continuing with the defendants until removed by such evidence, is one of the safeguards of our jurisprudence, and is a real, and not a fanciful, right. The defendants are entitled to its protection; and you will not permit any consideration, either of public interest or otherwise, to interfere with its application to this case.
I am asked by the defendants to charge, and I do charge: The defendants are charged in the indictment with misapplying the funds of the Galion National Bank, one as principal and the other as aider and abettor, with intent to injure and defraud the bank. The law presumes the defendants innocent of any intent to defraud or injure the bank, and the burden of proving such intent beyond a reasonable doubt is upon the government, and unless it has done so the defendants must be acquitted. A reasonable doubt is not a mere possible doubt, because everything relating to human affairs, and depending upon moral evidence, is open to some possible' or imaginary doubt. It is that state of the case which, after full consideration of all the evidence, leaves the minds of the jurors in such a condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. Every person is presumed to be innocent until he is proved guilty. If, upon such proof, there is a reasonable doubt remaining, the defendant is entitled to the benefit of it by acquittal. It is not sufficient to establish a probability, though a strong one, that the fact charged is more likely to be true than otherwise; but the evidence must establish the truth of the fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. To put it briefly in another form, if the evidence produced in this case be of such a convincing character that you would be unhesitatingly governed by it in the more weighty and important matters relating to your own affairs, then you may be said to have no reasonable doubt respecting the guilt or innocence of the defendants, notwithstanding the uncertainty which attends all human evidence. If, after an impartial comparison, consistent with and pointing to the guilt of the defendants, you have an abiding conviction of the defendants' guilt -such a conviction as you would be willing to act upon in the more weighty and important matters relating to your own affairs--then I say to you, you would have no reasonable doubt of their guilt.
I am also asked by the defendants to charge, and I do charge, as follows: It matters not how clearly the circumstances point to guilt, still, if they are reasonably explainable on a theory which excludes guilt, then it cannot be said that the facts in the case are sufficient to satisfy the jury beyond a reasonable doubt of the defendants' guilt; in other words, all of the facts proved must be not only consistent with and point to the guilt of the defendants, but the facts must be inconsistent with their innocence.
I am asked by the defendants to charge, and I do charge you, as follows: If, after consideration of the whole case, any one of the jury should entertain a reasonable doubt of the guilt of the defendants, or either of them, it is the duty of such juror not to vote for a verdict of guilty as to such defendants or defendant. I give you that charge, with this additional injunction: That if, after a consideration of the whole case, fully, carefully, and honestly given, after comparison with his fellow jurors, with a view of arriving at an honest conclusion, still one of the jury should entertain a reasonable doubt of the guilt of the defendants, or either of them, it would then be the duty of such juror not to vote for a verdict of guilty.
It is proper at this point, and before we proceed to a detailed examination of the charges, and of the evidence offered by the government and the defendants, for me to say to you in a general way that evidence has been presented here of acts and declarations of both Hays and Flickinger, done and said in the absence of the other. I saw to you that, if it appears, by satisfactory proof, that a design was formed by both of these parties to co-operate, or to assist one another, in the doing of any of the illegal acts charged in the indictment, then evidence of any act done or declaration made by one of the defendants, in furtherance of the common design to do the illegal act, is competent evidence for you to consider against the other defendant. And it would follow that any act or declaration of either of the defendants after the completion of the illegal act, and not in furtherance of it, would not be competent against the other defendant. Thus, in this case, evidence has been introduced tending to prove that certain declarations were made by the defendant Flickinger a short time after the Galion National Bank had closed its doors. If such declarations were made, they cannot be considered by you as bearing upon the guilt or innocence of the defendant Hays, since they were made after the illegal act, if any there was, was done. You will apply this rule to any other acts or declarations of either of the parties to this indictment which you may find were not done or made in furtherance of the common design to do the illegal act complained of in the indictment.
Section 5209, Rev. St. [U. S. Comp. St. 1901, p. 3497], under which this indictment is drawn, provides as follows: "Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.” It will be noted that several different kinds of crimes are defined by this section. The charges made in this indictment, we find upon examination, naturally classify themselves under two heads: First, those which charge the willful misapplication of the moneys, funds, and credits of the Galion National Bank; and, second, those which charge the issuing and putting forth of a certificate of deposit and certain bills of exchange without authority from the directors. Those two branches of the law are made the subject of this indictment: The misapplication of funds; and the issuance, without authority of the directors, of a certificate of deposit and certain drafts, called in the statutes "bills of exchange."
I call your attention to the fact that the acts declared criminal by the section which I read to you a moment ago, and upon which this indictment is based, become so when done with intent to injure or defraud the banking association or some other person or corporation. In this case, the charge, in all the counts of the indictment, is that the acts were done to injure or defraud the Galion National Bank. In directing that those offenses, or the acts which constitute them, must be committed with intent to injure or defraud the bank,