70 F.2d 35 | 7th Cir. | 1934
Appellant, the president of the Ayers National Bank of Jacksonville, Illinois, and William Goebel, the easMer of the same bank, were indieted for making false entries in a book of the bank in violation of section 5209 of the Revised Statutes, as amended (12 USCA § 592). This section provides that “Any officer, director, agent, or employee of any Federal reserve bank, or of any member bank * * * who makes any false entry in any book, report, or statement of such * * * bank with intent in any case to injure or defraud such * * * bank * * * or to deceive any officer of such * * * bank, or the Comptroller of the Currency, or any agent or examiner appointed to examine the affairs of such * * * bank * * * shall be deemed guilty of a misdemeanor, and upon conviction thereof * * * shall be fined not more than $5>000 or shall be imprisoned for not more than five years, or both. * * * ” Both parties were found guilty on four of the thirteen counts, including the thirteenth, a conspiracy count. A nolle prosequi was entered on one of the other counts, and as to the remaining counts, the court entered a directed verdict of not guilty.
The counts on which a conviction was had involved entries regarding the payment of interest on a certain note for $30,000 made by one Oscar Nelson, September 29, 1924, at wMeh time he was the treasurer of the state of Illinois. The note was a demand one, payable to the bank, with interest at five per cent, signed by one D. M. Flynn to ■whom a check for $30,000 was made payable, signed by Andrew Russel, agent, who was a viee-président of the bank. Flynn had endorsed the check to Nelson. The record discloses that Nelson paid $5,000 on the principal on July 17, 1325, and it is not denied that the note was executed for his benefit or that the obligation was in fact his. Counsel for appellant admitted in his opening statement that this interest had never in fact been paid, claiming that the bank had a light to waive the interest on the note in'view of the fact that at the time the bank was a depository for funds of the state, larg’e amounts of which were _ kept there without payment of interest by the bank to the state.
Before tMs court appellant did not question the correctness of the conviction of Goe-bel, but argued that the evidence introduced
The principal error has to do with the fact of insufficient proof of the corpus delicti. Appellant argues that apart from certain admissions of his co-defendant, there was no proof of the actual falsity of the entries with which they were charged. Upon the trial both defendants took exception to the introduction of these admissions in evidence before other proof of the alleged crime. There was no error in this, however, inasmuch as the order in which evidence is to be received is largely within the discretion of the trial court, and no judgment will be reversed because of the order in which evidence was introduced unless there was manifest abuse of such discretion. People v. Wolf, 334 Ill. 218, 165 N. E. 619; People v. Rowland, 335 Ill. 432, 167 N. E. 10. While it is true that the principal evidence relied upon by the Government lay in the admissions of the co-defendant and also of counsel for appellant that no interest was in fact ever paid, there is enough other evidence aside from that of the parties to justify the court in allowing the case to go to the jury. Oscar Nelson, the real maker of the note, testified that he had received the money for the loan of which the note in question had been given, and that he had never paid any interest on it, nor could he recall that any demand had ever been made upon him for payment of either the principal or the interest. He testified that he had paid the $5,000 which was endorsed on the back of the note as a payment on the principal. We think that the statement of the party who actually borrowed the money, that he never paid any interest on his loan, is sufficient direct evidence of the falsity of the entries as to payment of that interest, to permit the government to introduce the admissions of the parties charged with falsifying the entries, as corroborative evidence. In the case of Flower v. United States (C. C. A.) 116 F. 241, 247, the rule on this subject as follows: “A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession, will be sufficient if there be such extrinsic corroborative circumstances as will, when, taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt.”
Appellant raises two further questions, assuming the fact that there was sufficient evidence to warrant the conviction of the cashier, Goebel: (1) There was no proof that the entries were made with any criminal intent such as is necessary to constitute a crime under the statute invoked; (2) there was no proof that appellant had knowledge that the false entries were being made, or that he was in any way responsible for them. As to his first contention, we think that the government is correct in answering that it is inconceivable that there could be any other purpose or intent in the minds of those whoi brought about the false entries than to deceive the Comptroller or his agents. An examiner for the Eighth Federal Reserve District of which the Ayers bank was a member, testified that he had examined the bank four times during the period from December, 1929, to the spring of 1932, and had criticized the note in question in some of his reports, but had believed then that the interest had been paid, as noted on the note. Thus the effect of the false entries was to deceive the examiner, as it must have been intended by the ■ persons responsible for them. It has been reiterated time and again that a person is presumed to intend the natural and probable consequences of his acts, and certainly it seems obvious that if false entries are made in the books of a bank, the examiner will be deceived by them. The statute does not render it necessary to prove the motive for such deceit, but merely makes it a misdemeanor for the party who makes the false entry with intent to deceive. It is a fair inference, however, that if the examiner had known that the interest had not been paid he would have ordered the not© collected or charged off, and these no doubt were the things that appellant and his co-defendant wanted to avoid. It is quite certain that the examiner was deceived in this respect and that appellant and his co-defendant intended that he should be so deceived.
As to appellant’s argument that he had no knowledge of the false entries, and was in no way responsible for them, we think that there was sufficient evidence from which the jury could find him responsible, apart
Neither appellant nor his co-defendant offered any testimony, and both entered a demurrer to the evidence. All of the foregoing evidence is therefore undisputed. It constitutes substantial evidence to support the finding that there was a crime committed, and that appellant participated in that crime.
It is argued that the court erroneously admitted evidence which pertained to the guilt of his co-defendant but was in no way connected with appellant. If it be conceded that such evidence was inadmissible as against appellant, it is sufficient to say that the court in each instance instructed the jury not to consider it as against appellant, and we find no error in this respect.
Other objections to the admission and exclusion of evidence were made, but a perusal of the entire reeord convinces us that they are without merit. The exclusions were of testimony clearly immaterial. The testimony of Mrs. Mynn with respect to nonpayment of interest, if erroneously admitted, was harmless because that fact was admitted by appellant’s counsel in his opening statement to the jury.
Judgment affirmed.