82 F. 904 | 8th Cir. | 1897
after stating the case as above, delivered the opinion of the court.
The principal point relied on by plaintiffs in error in support of their contention that the trial court erred in the view of the law taken by it with respect to the counts charging a misapplication of the funds of the Commercial Bank is based upon those portions of the charge wherein it was said that:
“From the first hour that he <Dow) knew of iliis account, — know that the checks drawn by Mr. Miller were false and fictitious — if he allowed them to be accepted in his bank, lie thereby confessed his guilt, under this statute, of misapplying the funds of the bank. I say to you, gentlemen, that every check presented by Mr. Miller, whether upon this bank or any other bank, with knowledge on the part of Dow and McOlurken, and with their assent, upon which he received credit in the bank, was a direct and flagrant misapplication of the funds of the bank in defiance of this law.”
Tbe statute thus referred to, being section 5209 of the Revised Statutes, was before the supreme court for construction in the cases of U. S. v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, and U. S. v. Northway, 120 U. S. 327, 7 Sup. Ct. 580, and it was therein held “to be of the essence of tbe criminality of the misapplication that there should he a conversion of the funds to the use of the defendant, or some person other than the association, with intent to injure and defraud the association, or some other body corporate or natural person.” In the several counts in the indictments charging a misapplication of the funds of the Commercial National Bank it is averred that the misapplication was made with the intent to injure and defraud the association, meaning the national hank, and it is clear, under the ruling of the supreme court in the cases just cited, that the charges of misapplication contained in these indictments could not be made out unless it appeared that the funds of the hank had been depleted, withdrawn, or diminished in some form by reason of the action of Dow, aided and abetted by McClurken and Miller. The jury were instructed that the fact that Miller received credit in his account on the hooks of the bank for checks drawn on that bank or on other banks constituted a flagrant misapplication of the funds of the Commercial Bank, within the meaning of section 5209; yet it is apparent that merely giving credit to Miller on the hooks of the bank for the amount of the checks did not lessen the funds held by the bank, nor in fact defraud the association, in any form. To complete a misapplication of the funds of the bank, it was necessary that some portion thereof should be withdrawn from the possession or control of the bank, or a conversion in some form should he made thereof, so that the hank would he deprived of the benefit thereof. It is not necessary in all cases that the money should he actually withdrawn from the bank. Thus if, by connivance between a bank official and a customer of the hank, the latter is allowed to draw checks on the hank, when the drawer has not the funds to meet the checks, and the same are given by the drawer to third parties in payment of claims due them, and the third parties, instead of getting the cash on the checks, have them cred
Exceptions were also taken to- that portion of the charge wherein the court called the attention of the jury to the fact that by the provisions of a statute; of the state of Colorado it was made a misdemeanor for any one to draw a check or checks on a hank in which, he had no funds to meet the check or cheeks. The criminality of the acts done by Dow were to he measured by the provisions of the statute of the United States, and, unless these acts came within the prohibition of the federal law, a verdict of guilty could not he rendered in this case on the ground that the provisions of the statute of Colorado were violated by the defendants. It is doubtless true that
“If there were no statute on the subject, the drawing- of a chock upon a bank where there are no funds is an attempt to get money by false pretenses. It is an attempt to get money by deceit. It is swindling; that is what it amounts to, — it is swindling. And if the check is in any manner paid, the man who does it is a swindler; and if it is done with the knowledge of the bank officers, and’ they assent to it, and recognize the checks when drawn, they are in the same category. They also participate in the fraud.”
From this broad statement upon the subject, given without restrictions or qualifications, the jury might well understand that in all cases the drawing of a check, when at the time the drawer had no funds to meet it, would be a fraud on part of tbe drawer, and tbe recognition of tbe check by tbe bank officials, by crediting it to the account of the holder, would constitute a criminal misapplication of the funds of, the bank, yet it is apparent that in many eases such acts would not be justly open to the charge of fraud, and in no case could they constitute a criminal misapplication of the funds of the bank, unless the funds of the bank had been lessened thereby. In nearly all cases wherein overdrafts occur, checks are drawn on the bank when in fact the drawer at the time has no funds on deposit to meet the check; and yet not all overdrafts are frauds, nor do the officers of the bank necessarily become participants in a fraud simply because they give recognition to checks drawn by their customers which are in fact overdrafts, because drawn upon the bank when the drawer had not funds therein to meet the checks. Of course, frauds and criminal misapplications of bank funds by tbe officials thereof may be committed by tbe recognition or payment of checks drawn on the bank when there are not funds to meet the same; but tbe criminal wrong, including tbe intent, must appear from all the facts surrounding the transaction, and cannot be inferred, as a matter of law, from tbe mere fact that when tbe check was drawn there were not funds on deposit to meet the check; and the charge given the jury in this case on this subject must be held misleading and erroneous because it is so broadly stated as to justify tbe jury in believing that the mere drawing of a check creating an overdraft is a fraud on part of the drawer, and the payment thereof by the bank officers of necessity constitutes a fraudulent misapplication of the funds of the bank.
Exceptions were also taken on the trial, and error is now alleged upon the construction placed by the court, on counts 8 and 4 of indictment No. 1,302, wherein it is charged that MeClurken made certain false entries in the books of the bank, it being charged in the third count that under date of June 22, 1893, MeClurken, as receiving teller, had entered in his cash book that the cash items received on that day amounted to §26,011.75, whereas in fact (hey amounted t.o only $11.75: and in the fourth count it is charged that MeClurken. as receiving teller, made an entry showing that on the 27th day of June, 1893, the cash items received amounted to $27,469.05, whereas in fact there had been received in cash items the sum of $469.05 only. The evidence showed that on each of the named days checks aud cash to the amount of the entry were received by the feller, but a large part ol' the checks were drawn upon the Commercial National Bank by Miller aud other parties, having at the time no funds in the bank, and the courr charged the jury (hat MeClurken, as receiving teller, could know, “and it was his duty to know, whether they were good checks or not. So (hat, if you believe from the evidence that he accepted as any part of this amount the false and fictitious checks, aud gave credit upon them in this entry upon his books, I say to you that that entry is false and fictitious within the meaning of the law."’ It is the settled rule that indictments should be free from ambiguity, and be so expressed as to leave no doubt in the mind of the court and of the accused of the exact offense intended to be charged, and the general character of the facts upon which, the government bases the case; for, unless this is done, the accused is not: advised of the matters which he is required to meet in defending himself. U. S. v. Carll, 105 U. S. 611; U. S. v. Cruikshank, 92 U. S. 542; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571; Evans v. U. S., 153 U. S. 584, 14 Sup.
“Wliilst Ave consider the charges asked were in some respects unsound, yet the exception reserved to the charge actually given by the court was Avell taken, because therein the questions of misapplication and of false entries were interblended in such a way that it is difficult to understand exactly Avhat Avas intended. We think the language used must have tended to con*911 fuse the jury, and loare upon tlielr minds Hie impression that, if the transaction represented by the entry actually occurred, but amounted to a misapplication, then its entry exactly as it occurred constituted a false entry; in other words, that an entry would be false, though it faithfully described an actual occurrence, unless the transaction which it represented involved full and fair value for the bank. The thought: Thus conveyed implied that the Truthful entry of a fraudulent transaction constitutes a false entry within The meaning of the stature. We think it; is clear that the making of a false entry is a concrete offense, which is not committed where the transaction entered actually took place, and is entered exactly as it occurred.”
For these reasons the judgment and sentences entered by the trial court must be reversed, and the case is remanded to the district court of Colorado, with instructions to grant a new trial.