227 F. 799 | 8th Cir. | 1915
Stout was convicted and sentenced for misapplying the moneys and credits of the First National Bank of Cherokee, Okl., of which he was president, to the use and benefit of the Cherokee Mill & Elevator Company. Rev. St. § 5209 (Comp. St. 1913, § 9772).
An instruction was asked that if the loans of the bank to the mill company, of which that specified in the fifth count was one, were pursuant to a custom of the bank, of which, the directors, or .a majority of them, or of their committee in charge, had knowledge, and assented to, relying upon the wheat purchased by the mill company, with the moneys loaned, as sufficient security for repayment to the bank, tire accused should be acquitted. The recitals cover but a part of the case against the accused, and imperfectly at that. Undoubtedly the directors knew the loans were being made upon so-called bills of exchange with wheat tickets attached indicating the amount of wheat purchased by the Mill Company. But there was evidence that it was the accused, not the directors; who established the custom referred to, that he alone knew the Mill Company was insolvent, that it was not keeping the wheat in its mill or elevators, or the flour product, as security for the loans, and that in fact the loans were wholly unsecured. There was also evidence that he purposely refrained from informing the directors of the true condition, and in some instances expressly misrepresented jt to'them. Under these circumstances the knowledge of the directors of the custom and the apparent form of the loans, and their reliance, upon the semblance of security which did not in fact exist, would not
“The defendant has seen fit to rest his ease upon the evidence which has been introduced on behalf of the government, including such testimony as may have been elicited'■ upon cross-examination of the government’s witnesses. You are instructed that he had a perfect right to do so, and that fact must in no irise prejudice you against him. But you should take into consideration the entire evidence which lias been introduced in the case, including such teslimony as may appear to you to be in Ms behalf, bearing in mind at all times that, before the defendant can be convicted of the crime charged in the indictment, you must be satislied beyond a reasonable doubt of his guilt from the evidence introduced in the case, and that the presumption of his innocence continues through every part of the case until overcome to your satisfaction by the evidence beyond such reasonable doubt. And in arriving at a verdict in this case you should take into consideration all of the evidence which has been introduced, and if after a full and careful consideration thereof you are uncertain or have a reasonable doubt as to the guilt of the defendant, it is your duty to find him not guilty.”
All not italicized was fully covered in the general charge. The accused, who had offered neither himself as a witness nor other evidence in defense, now urges that there has been a violation of his right and immunity under Act March 16, 1878, 20 Stat. 30, c. 37, which provides :
“That in the trial of * * * indictments * * * against persons charged with the commission of crimes, * * * in the United States courts, * * * the person so charged shall, at Ms own request but not otherwise, bo a competent witness. And his failure to make such request shall not create any presumption against Mm.”
This statute restrains both court and counsel from comment upon the failure of the accused to testify. Wilson v. United States, 149 U. S. 60, 13 Sup. Ct. 765, 37 L. Ed. 650. If he asks it, he is entitled to an affirmative instruction upon the subject, even in the absence of wrongful comment. But an instruction requested, if not in the language of the statute, should fairly express its thought, so- the court may be apprised of what is desired. Here nothing had occurred during the trial requiring correction by the court on its own motio.n, and its attention was not directed to the immunity, unless by the italicized words above. They make no direct reference to the failure of the accused to testify and the absence of presumption against him on that account. On the contrary, it might have been inferred that the purpose was to assail the sufficiency of the government’s evidence against the accused. That matter was fully covered in the court’s charge to the jury. The court may well have regarded the instruction asked as a mere reassertion of the claim of counsel when the government rested its case that:
“The defendant Stout elects to rest Ms case upon the evidence offered by the government and the facts aud circumstances as they have been developed in the cross-examination of the witnesses for the government, believing that*804 it has been conclusively shown that the transactions charged in the indictment were bona fide, made in good faith, and without any intent to injure or defraud the bank.”
But, if this be not so, the claim of immunity or protection seems broader than the statute. The accused refrained, not only from testifying himself, but also from offering any evidence whatever, by other witnesses or by records, and he seeks to enlarge the immunity from a presumption against him on the former ground to an immunity from prejudice on account of the latter. We think that is inadmissible. There should be no hurtful presumption from the failure of an accused personally to testify, but that does not necessarily exclude a prejudice resulting from an entire absence of affirmative evidence in defense, nor inferences from a failure to produce evidence peculiarly within his knowledge or control, not requiring personal disclosures or his presence upon the witness stand.
We discover no error in the admission of evidence. In a case of this character the scope of inquiry is necessarily very broad, and the proper limits were not transgressed.
The sentence is affirmed.
<&wkey;>For other eases seo same topic & KEY-N UMBER in all Key-Numbered Digests & Indexes
<&wkey;>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes