247 F. 27 | 8th Cir. | 1917
Lead Opinion
Thomas D. McCallum was indicted, tried, and convicted for misapplication of the moneys, funds, and credits of the Arkansas National Bank of Hot Springs, Ark., while he was assistant cashier, in violation of section 5209 of the Revised Statutes (section 9772, 9 U. S. Comp. Stat. Ann. 1916).
‘•Q. What would, have been the result if the failure to credit that to profit and. loss had been an inadvertence or mistake? What would have been the effect on the cash? A. The cash would have boon over $110.80. * * * Q.
How would it have been possible for his cash to have balanced there, unless he had abstracted $110.80 from the cash of the bank? A. It wouldn’t occur, except, of course, there is a possibility of a corresponding error of some sort with somebody else.”
On cross-examination this witness testified that, when the statement of the August account was received from the St. Louis .bank in September, an entry was made on the reconcilement book of the Arkansas bank which—
“shows interest $110.80, as an exception on the eredit side. That is in the handwriting of Mr. McCallum. Q. Does it show a credit or a debit? A. It is on the credit side. It shows that we were credited in St. Louis with that amount. Wé was to add that to the balance our books showed on the 31st. Q. You had already charged it on the Arkansas National Bank’s books, had you not? A. On Ihe ledger, yes; hut not on the reconcilement hook. Q. Was it charged on the books? A. It was not, until the 15th of October. Q. But it was later put in the regular form on the hooks, wasn’t it? A. It was charged to the National Bank of Commerce; it wasn’t credited to interest account. Q. How was it credited? A.' I haven’t any idea. The Court: I understood him to say it was not credited; it was charged. A. There was no corresponding credit. Q. It was simply, then, a failure to put the credit on the hooks, wasn’t it? A. It is equal to that; yes, sir. Q. Well, that is what it was, wasn’t it? A. Yes.”
On redirect examination this colloquy was had:
“By District Attorney Martin: Q. You. speak about that $110.80 being a mere matter of failure to credit it. Suppose it had been credited to profit and loss, that would have been a proper entry, would it not? A. Yes. Q. Then what would have been the result upon the cash? A. The cash would ffavo balanced. ^ Q. Failing to enter that there, what happened to the cash? A. In order for the cash to balance as close as it did, there must have been some money taken out. Q. You would (—) had to taken out a corresponding amount of money to (—) made the cash balance? A. Yes.
“By the Court: Q. Supposing I came in the bank and deposit $1,000, and I get it entered on my book, but on that evening there is no entry made on the books showing that I was credited with $1,000 and the cash balance, what became of that $1,000? A. It must have taken out of the cash. Q. In other words, it was embezzled or stolen; is that what it is? (Objected to by the defendant upon the ground of being incompetent, irrelevant, immaterial,*30 and upon the further ground that the same was prejudicial to the defendant, which objection was by the court overruled, and the defendant excepted.) A. Yes; in your hypothetical case it certainly would be.”
This "ruling of the trial court is assigned as error, and a careful consideration of all the evidence relative to this item of $110.80, and a comparison of it with the supposed case which the court presented, and by the testimony of the witness proved to constitute embezzlement, has convinced that it cannot be sustained. There was no evidence in this case that McCallum had deposited $110.80 in the bank, made no entry of it on the books of the bank, and that the cash balanced at the close of the day of the deposit, or of any facts at all similar to these. The sum of the evidence was that the St. Louis bank owed and had credited the Arkansas bank on August 31, 1914, $110.80 interest on deposit balances during August; that on receipt of the St. Louis bank’s statement of account during the-first half of September, McCallum entered that $110.80 on the reconcilement book of the Arkansas bank as an exception which showed a credit to the Arkansas bank of that amount with the St. Louis bank; that on October 15, 1914, he caused that $110.80 to be charged in the regular account books of the Arkansas bank against the St. Louis bank, but failed to credit it to profit and loss, or to interest account, as he should have done; that the effect of this failure to credit profit and loss necessarily was to make the cash balance on that night appear to be $110.80 over, but that balance was in.¡fact $5.53 short; that this discrepancy might have resulted from the abstraction of the $110.80 from the bank by some one, or by a corresponding error in entries in the books regarding the accounts of others.
Upon this evidence and'the fact that McCallum had access to the funds of the bank, and in the face of his testimony that he never abstracted this money, or any part of it, the United States convicted McCallum of the misapplication of this $110.80. But the indispensable basis of its case was that with the exception of the failure of McCallum to credit this $110.80 to- profit and loss, or to interest account, thé books of the bank were correct. The foundation of its case, without which it had no case, was that if that entry had been made, or if in its absence McCallum had not abstracted the $110.80, the books were correct and would have balanced. It rested its whole case on tire proposition that the books were correct and would have balanced if the credit to profit and loss had been made, and its entire case was that as that entry was not made, and the books did not. show the cash $110.80 over, McCallum must have taken it. But it introduced no evidence that the books of the bank were correct and would have balanced if the credit had been given to profit and loss, or if McCallum had not taken the money, and it demonstrated the fact that they were not correct and would not have balanced by the fact that at the close of the day the cash was $5.53 short. Neither the failure to' credit the $110.80 to profit and loss nor the abstraction of the $110.80 could by any possibility have produced that shortage, if the books were otherwise correct and would have balanced. That shortage may have, resulted from one or many errors in the bookkeeping, it could not have resulted from correct bookkeeping and the $110.80 transaction, and
Returning, now, to the introduction into this case of the supposed case of a culprit who deposited $1,000 with a bank, which was not en - tered on its books and the books still balanced, and the proof that some one was a thief and embezzler, the introduction of this case and proof was an error, because it tended to withdraw the attention of the jury from the facts in evidence in McCallum’s case, and to fix them on another case and other facts, essentially unlike those in the case on trial, and to invite the danger that they might be misled to decide McCallum’s case on the facts in the supposed case, because the supposed case and its facts were irrelevant and immaterial to the issues presented by the evidence of the facts in the case on trial, and far more baleful to the culprit than were those before the court, and because the introduction of the'supposed case and its facts tended to prejudice the minds of the jurors against McCallum, and to lead them to think that the court was of the opinion that he was in a plight similar to that of the culprit in the supposed case. And as there was no substantial evidence to sustain the claim of abstracting this $110.80 the court also1 fell into an error in its refusal to instruct the jury as requested by counsel for McCallum to return a verdict of acquittal of the charge of misapplying this money.
“if a man knows the act he is about to commit will naturally or necessarily have the effect of injuring or defrauding another, and he voluntarily does the act, he is chargeable in law with the intention to injure or defraud. It is not necessary that his object was primarily to injure or defraud. It might have been to benefit himself or another. These terms are used in the statute, and mean nothing more than that general intent to injure and defraud, which always arises in contemplation of law when one willfully and intentionally does that which is illegal and fraudulent, and which in its necessary and natural consequences must injure and defraud another.”
After some farther remarks upon this subject the court closed its charge with these words:
“So the question for you to determine from all the evidence in this case is whether his intention in these different acts was to injure and defraud by taking into consideration what the natural effect was and whether willful and wrongful. So far as the defendant is concerned, he says that he never intended to do anything wrong; that he intended to pay that $1,275.67 note and had the money—had securities; but, as the district attorney says, he did not offer any of the securities when he borrowed the money; he did not ask any of the officers, who were authorized to make loans to authorize it, and did not obtain the consent of the president or the discount committee.”
To this portion of the charge the defendant excepted, and he also excepted to the refusal of his request upon this subject. If the court had instructed the jury that the defendant’s intent to defraud the bank was an indispensable element of each offense with which he .was charged, that there is a presumption of law that one intends the natural and probable effect of the acts he intentionally does, that this presumption may be overcome by evidence, that a defendant’s testimony as to his intent and his explanations of his acts and omissions
The judgment below must be reversed, and the case must be remanded to the court below, with instructions to grant a new trial; and it is so ordered.
Concurrence in Part
(concurring in part and dissenting in part). The jury returned a general verdict of guilty on all five counts of the indictment, and the defendant was sentenced on each of these counts. The judgment below, therefore, must stand so far as the indictment is concerned, even if counts 1 and 2 are bad, as argued in
I therefore concur in reversing the judgment below and granting a new trial, for the reasons stated in the majority opinion in discussing the evidence under the third count, and referred to in the opinion as the charge with reference to the abstraction of the sum of $110.80.