244 F. 736 | 8th Cir. | 1917
Matters was convicted and sentenced upon an indictment which in 20 counts charged him with violating
The sixteenth count of the indictment charged Matters with aiding and abetting one Ruebben, president of the First National Bank of Sutton, Neb., in the misapplication of the funds of the bank, with the intent on the part of each to injure and defraud the same. It was alleged in this count that Ruebben as president, without any consideration passing to the bank from any one, on June 4, 1913, issued a certificate of deposit at the request of Matters, payable to the order of one Mary E. Johnson, for the sum of $1,500; that Matters delivered the certificate of deposit to the payee thereof in payment of a debt and obligation owing by Matters to said Mary E. Johnson; that the amount of said certificate was subsequently paid by Ruebben as president of the bank to the payee, without any consideration passing to the bank therefor. Matters at the trial did not dispute that the certificate of deposit was delivered by him to Mary E. Johnson in part payment of his personal debt, but contended that the certificate was obtained from the bank in a legitimate way. The prosecution, for the purpose of proving the charge made in the sixteenth count, placed Mary E. Johnson, the payee named in the certificate of deposit, upon the stand as a witness. Her testimony, reduced to narrative form, covers over 20 pages of the record, and cannot be detailed in this opinion. It is sufficient to say, however, that the witness, over the repeated objections and exceptions of counsel for Matters, was allowed to narrate the history of a financial transaction between herself and Matters, extending over a period of 3 years and 6 months prior to the issuance of the certificate of deposit.
The witness was allowed to testily that the debt of Matters to her was originally contracted early in the year 1910, by the delivery by
“The date of this was Ifebruary 17, 19-13, and was transparently an artful attempt to shift the form of the obligation, and to get away from the real character of the indebtedness.”
The witness was further permitted to testify that the money was not paid at the expiration of 30 days, and about April 9, 1913, the witness went again to the office of Matters, accompanied by E. G. Jones; that the witness had visited the office of Matters for the purpose of collecting this money hundreds of times; that finally, upon the ad-vice of Mr. Jones, the witness received from Matters, in settlement of her indebtedness against him, not only the $1,500 certificate of deposit, mentioned in the sixteenth count, but also another certificate of deposit, issued by the Sutton National Bank, for $2,000; that the certificate for $2,000 was unpaid when the bank failed; that witness received from Matters a deed for 160 acres of land in Banner county, Neb., on account of the certificate for $2,000; that she was never satisfied with the settlement, and- had never been able to sell the Banner county farm for anything.
It is claimed by counsel for the government that the evidence was relevant upon the question of the intent of the defendant in securing the issuance of the certificate of $1,500, for the reason that it showed that Matters was embarrassed and unable to pay his debts. We are of the opinion that, conceding the insolvency of Matters was material to the inquiry before the court, it did not justify the admission in evidence of the whole history of the transaction between Mary E. Johnson and Matters. The primary effect of the evidence was to show that Matters had attempted to defraud Mrs. Johnson out of her money. The effect, if any, of the evidence upon the real issue in the case being tried was so incidental and small that it would be lost, so far as the jury was concerned, in the presence of those features of the testimony to which we have adverted. The introduction of the evidence in our judgment prevented a fair trial.
There are many other grave errors assigned in the record, but as there must be a new trial, and the errors complained of may not occur again, we do not find it necessary to consider them.
For error in the admission of the testimony heretofore described, the judgment below is reversed, and a new trial ordered.