73 F. 165 | U.S. Circuit Court for the District of Kansas | 1893
(charging jury). One of the chief characteristics of a good government is the sure and speedy administration of justice. No government can long endure, or ought long to endure, under which the criminal is not speedily and certainly punished, and the innocent as speedily and certainly acquitted and protected. Laws are enacted for the protection of the lives, liberty, and property of the citizen. Penalties are prescribed for their violation, that this protection may be insured. Every good citizen withholds Ms own hand from the infliction of punishment, and appeals to the courts Ms government has established to right Ms wrongs and to enforce the laws enacted for Ms protection. Hor is the action of the government or its officers, in prosecuting those that they honestly believe to be guilty, properly subject to any adverse criticism or animadversion; nor has there been, so far as I have observed, anything in their conduct in this case that has even savored of persecution or unfairness. If the government has money and officers at its command, and uses them to properly gather and present the evidence against one whom its officers believe to be guilty of a violation of our laws, we ought not, on that account, to be resentful or prejudiced against it; but we should be grateful that we live under a government that has the power and disposition to punish the guilty, for it is only by the punishment of the guilty that the lives, liberty, and property of innocent citizens are preserved. If the .courts and juries discharge the duties the law imposes upon them, if with courage and impartiality they punish the guilty and acquit the innocent, contentment and satisfaction and domestic peace prevail. But if they fail in the discharge of these duties; if criminals escape their just punishment, and the innocent are needlessly imperiled; if the property, lives, and liberty of the citizens go unprotected, because the laws are not enforced by juries and the courts, — every man, despairing of obtaining justice through
We now come, gentlemen of the jury, to the discharge of one of "die most important duties that will ever devolve upon us as citizens. We must determine whether the prisoner at the bar is guilty or innocent oí a violation of the laws of this land. We have all, court and jury alike, taken a solemn oath to discharge this duty without fear or favor, according to the law and the evidence. In ¡he discharge of this duty, the court and the jury have different parts to perforin; but the honest and faithful discharge of their duties, and the attainment of a jnut result from this trial, demand of the court the same courage, integrity, impartiality, and zealous determination to do exact justice, regardless oí the consequences to (he parties, which I have no doubt animate the jury, and will inspire and direct their action. It is the duty of the court to declare to you the law by which this case must be determined, and it is your duty to be governed by that declaration. H is your exclusive province and duty to determine the issues of fact here presented, and the weight: and credibility of the testimony of the witnesses, and by your determination of these questions the court will be bound. If, in the course of what the court may say to you, any expression of opinion should drop as to the disputed issues oí fact, or the credibility of the testimony of the witnesses, you are not bound by any such expression; but it is your privilege to adopt or disregard it as you may see lit. You are, I repeal, the sole judge® of the disputed questions of fact yet to be decided.
The defendant is charged by the government with the commission of heinous crimes. He is presumed to be innocent until his guilt is proved. The burden is on the government to prove the charges k has made. Yot only this, bui before the defendant can' be found guilty of any offense, that offense must be proved by the evidence beyond a reasonable doubt. A reasonable doubt is a doubt founded on a consideration of all the testimony, and based on reason, — such a doubt as would deter a reasonably prudent man from acting or deciding in the most important matters involving his personal interests. If you have such a doubt of the guilt of the defendant under any of the counts of this indictment, after carefully considering all (he evidence, you should acquit him of the offense charged in that count; but if you have no such doubt, but are morally certain he is guilty of the offense charged In any count of the indictment, you should fearlessly declare him guilty, it is not necessary, however, that you should be satislied beyond all possibility or suspicion oí doubt that the defendant was guilty before you can convict. Doubts that are not based upon a reasonable and careful consideration of all the evidence, but are purely imaginary, or born of sympathy alone, or of the ingenious suggestions of counsel merely, ought not to be considered, and should not influence your verdict. Possible, imaginary, and sympathetic doubts haw: no proper place in your deliberations; and if, in your opinion, the offense charged in any count in the indictment is proved beyond
In a more primitive state of society, men generally kept their money and personal property in their own possession; but in our day it has long been the habit of men of all classes to intrust their money and securities to others for safe-keeping. Banks have been established in the large cities, protected by an efficient police and by secure vaults against the stealth of the thief and the force of the robber, and in these the moneys and securities of the business man and of the capitalist, and the surplus money of the farmer, the mechanic, and the laborer are alike deposited, in the faith that their directors and officers will faithfully preserve and honestly return these deposits, or their equivalent, when called for. A portion of the moneys thus deposited is, in the usual course of business, used to discount commercial paper of the customers of the bank, or to loan to them upon their promissory notes, while a sufficient balance is kept on hand to pay depositors as they call. It is obvious that, under this system, the security of the moneys of the depositors, the interests of the stockholders and the creditors of any bank, and its very existence must depend almost entirely upon the honesty, integrity, care, and prudence of its officers. As the money is in their hands, they can, by a breach of trust and honor, appropriate it to their own use, or to the use of their friends, or, by carelessness and imprudence, they may loan it to worthless borrowers, until it is irrevocably lost. To prevent the possibility of such crimes and misfortunes, as far as possible, is one of the objects of the existence of the national banking law. It is well to note here that no part of that law requires any citizen to become a president or officer of a national bank. No man is compelled by that law to discharge any of the duties prescribed, or to put himself in a place where he can be liable to any of the penalties denounced by that law. But, if he voluntarily assumes the position of a president of a national bank, if he voluntarily takes the control and management of the .funds invested in the stock and deposited in the vaults of a national bank, the law requires of him the faithful, honest, and exact performance of the duties it imposes upon such an officer, and imposes proper penalties for its violation. This is, certainly, not unreasonable, in view of the great public interest in safe depositories and solvent banks.
To prevent losses through the carelessness, imprudence, or faithlessness of its officers, every national bank is put under the control of the government by this law, and its officers are required to keep correct books of account, open at all times to the inspection of the proper government officers. The comptroller of the currenc.)- is empowered to control and direct the officers and directors of each bank, and, whenever the bank is so conducted as to imperil the safety of those interested in it, and the security of its depositors, it is his duty to wind up the bank, and to preserve any property of value in its control for those justly entitled to it. To furnish the comptroller with the necessary information to enable him to discharge these important duties, the law provides that, at least five times during every year, and on dates to be fixed by him, every
It is obvious, from this brief review of some of the provisions of this law, that its efficacy must depend very much, and often entirely, upon the truth and correctness of the books of the bank and the report to the comptroller. If they are false, the comptroller, the examiner, and the public are liable to be deceived, the stockholders and depositors are liable to be misled, and the law itself eva'ded and practically annulled. To prevent the possibility of false books and false reports, the congress, in addition to the requirement that the report shall be verified-by the oath of the president or cashier, wisely enacted that “every president, director, cashier, teller, clerk or agent of any such banking association who * * * makes any false entries in any book, report, or statement to tbe association, with the intent in either case to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association * * * shall he deemed guilty of a misdemeanor” (section 5209, Rev. St), and punished accordingly. Now, if this provision can be disregarded and evaded with impunity, if false books can be kept, and false reports made to the comptroller, by the officers and agents of the national hanks at will, the national banking law will be deprived of much of its utility, and the greater part of its safeguards will be removed. It is this provision that the defendant stands charged with violating. The government charges that this defendant made false entries in three reports to the comptroller, and that he made many false entries in the books of the bank. The evidence is uncontradicted that the three reports in which (he false entries were contained were sworn to by Mr. Allis as president of the First National Bank of Little Rock;
There remain but two questions for you to determine under any of the counts of this indictment that will be submitted to you. They are: First, did the defendant make any of the false entries charged? If you find that he did, then, second, did he make any of them knowingly, with the intent to injure or defraud the bank, or any other body politic or corporate, or individual person, or to deceive any officer of the association, or to deceive any person appointed or thereafter to be appointed by the comptroller to examine the bank?
The “false entry” that is punishable under this statute is an entry that was knowingly and intentionally false when made. It was not the purpose of congress to punish an officer who, through au honest mistake, makes an entry in one of the books or reports of the bank which he believed to be true, when it is, in fact, false. It follows that, in order to convict the defendant, you must find, not only that he made a false entry in one of the books or reports of the bank, but also that he knew that entry to be false when he made it. If, however, you should find that he made a false entry in a report of the condition of the bank to the comptroller of the currency, you are authorized to presume, from that false entry itself, in the absence of any explanation, or of any other testimony, that he knew such entry to be false. This law makes it the duty of the president or cashier of the bank to make a true report of the condition of his bank to the comptroller, and to verify it. It imposes upon the officer who verifies the report the duty of knowing the condition of his bank, and truthfully reporting it. He testifies to the comptroller that the report he makes to him is, in fact, true and correct, and this oath presupposes that he knows whether it is true or false when he takes it, and he cannot afterwards be heard to say that he did not know the facts, unless he was himself mistaken, or deceived, after an honest endeavor to discharge Ms duty. He cannot keep himself in ignorance, willfully shut his eyes to the truth, or refuse to examine into the true condition of his bank, and to learn whether his report is true or false when he makes it, and thus escape liability. Nor can he intrust his duty and his conscience to his- clerk or his bookkeeper, and then escape liability, civil or criminal, on the plea of ignorance. In such a case, the law presumes that he knows what his duty and Ms oath require him to know. But if, on the other hand, he honestly and faithfully investigates the condition of his bank, and compares it with his report, either alone or with the assistance of his clerk or bookkeeper, and then verifies it in the belief that it is correct, when, through mistake of his own, or some deception practiced upon him by his clerk or bookkeeper, it is false, he is guilty of no offense under this statute, and should not be punished.
Nor is a false entry in a report of ihe condition of the bank, or a false entry made in the books of the bank, punishable under this statute, unless you also find that it was made by the defendant or by his directions, with the intent either (1) to injure or defraud the
There is a decided conflict between (he testimony of the witnesses Benny, Yost, and Knpferle, and the testimony of the defendant, upon very material issues in this case. It is your duty to reconcile this conflicting testimony where that is possible; and, where it is not you should consider the interest these witnesses have, if any, in the issues on trial, and their bearing and apparent candor on the stand, and decide, in view of all the evidence, who has told the truth. It is proper for you to hear in mind, in weighing this evidence, that the testimony of a disinterested witness is more likely to be correct
A false entry made in the books or reports of the bank by a clerk, bookkeeper, or other subordinate employé or officer, by the command or direction of the president of the bank, is a false entry made by the president, and he is liable to punishment for it under this statute, if he gives the direction, knowing the entry to be false, and with the intent explained to you.
Certain notes, made by various parties, have been introduced in evidence, and much testimony relating to them adduced, tending to chow that some of them were not entered upon the books of the bank. Mr. Allis has testified that the proceeds of all of these notes were applied to the benefit of the Little Bock Bank, while Mr. Yost has testified, and referred you to entries in the books which, he claims, show, that the proceeds of some of these notes were credited to the individual account of Mr. Allis on the books of the Little Bock Bank, so that that bank really received no benefit from them. These notes, and the testimony concerning them and their proceeds, may be considered by you in determining whether or not Mr. Allis has testified truthfully, and in deciding who was the active manager of the bank in 1892, but beyond that they are not material to the issues in this case, and should not be considered in determining them.
There are 25 counts in the indictment before us, each of which charges a separate offense. The government does not press the 7th, 11th, 20th, 21st, 22d, 23d, and 24th counts, and you heed not consider them. . The court will call your attention to the offenses charged in the remaining counts, and to a portion of the evidence concerning them, in the order of time. You are not bound to be governed by any statement of the evidence made by the court; but, if your recollection accords with that of the court, you may accept it, and, if it differs from it, you may be governed by your own memory.
By the 13th, 16th, 19th, and 25th counts of this indictment, it is charged, in effect, that the defendant, as president of the bank, knowingly made false entries in one of its books, with the intent explained, by which it was made to appear, on the. books of the bank, that on February 3, 1892, the Fourth National Bank of New York became indebted to the Little Eoek Bank in the sum of $5,000, the First National Bank of Chicago in the sum of $15,000, and the Continental National Bank of Memphis in the sum of $15,000, by reason of the transfer of these amounts to these three banks, respectively, by the Massachusetts Loan & Trust Company by order of the Little Bock Bank. There are entries on the books of the Little Rock Bank which mean that on February 3, 1892, the three banks named became indebted to the Little Rock Bank in the way charged. It also appears, on the books of that bank, that the Massachusetts Loan & Trust Company was indebted to it in the sum of $35,000, from some time in August, 1891, until February 3, 1892. The respective officers of the three banks which were charged with the amounts aggregating $35,000, testified that their banks never received these sums of money, and never became indebted to the Little
Mr. Allis testified that the §35,000 charged to the Massachusetts Loan & Trust Company resulted from a discount by that company of a note of the Electric Street-Railway Company and himself for $25,-000, dated about June <5, 1891, payable to the order of that company, and signed on the hack by the Thomson-Houston Company. He says the proceeds of this note, together with the proceeds of a $10,000 note of like character, Mr. Coffin promised to place to the credit of the Little Rock Bank in the Massachusetts Loan & Trust Company, but that he did not do so. He says that he did not learn that this money was not to the credit of the Little Rock Bank until some time in November or December, 1891, and that he then directed the clerks of the bank to correct the entry. He denies that lie ever told Mr. Denny to make the three entries charged in this count of the indictment; and it is claimed, on his behalf, that the fact that they were made while it is admitted that he was out of the state, and about the time when an examiner was here to examine the affairs of the bank, tends to show that these entries were made without his direction. On the other hand, Mr. Littlefield, an officer of the trust company, testified that the note of $25,000 discounted by bis company had no relation or connection with the First National Bank of Little Rock; that (he $25,000 note was negotiated by the Thomson-Houston Company, and the proceeds placed to the credit of that company; and that the $10,000 note was placed in the hands of the trust company to be delivered to a bank in Reading, at which the Thomson-Houston Company negotiated it. Mr. Denny, the cashier of the little Rock Bank, testifies that, in the latter part of January, 1892, the defendant directed him to make the false entries of February 3, 1892; that he made them pursuant to that direction; and that, on February 13, 1892, by direction of the directors of the Little Rock Bank, he credited these three banks with the amounts charged to them, respectively, and charged the aggregate amount to the defendant, and the latter never complained, of it. It is for you to decide who lias told the truth here.
By counts 14 and 15 of this indictment, the government charges, in effect, that on the 22d day of February, 1892, the defendant, as president of the bank, knowingly made false entries in certain books of the bank with the intent explained to you, by which it was made to appear on those books that, on February 22, 1892, the Little Rock Bank became indebted to the defendant in the sum of $50,000, and that the First National Bank of New York became indebted to the Little Rock Bank in the sum of $25,000, by reason of the deposit by Mr. Allis of $25,000 in the First National Bank of New York to the credit of the Little Rock Bank. It admittedly appears, from the
By counts 10, 17, and 18 the government charges, in effect, that on the 1st day of March, 1882, the defendant, as president of the Little Bock Bank, knowingly made false entries in certain books of that bank by which it appeared from those books (1) that the little Bock Bank became indebted for a demand certificate of deposit in ike sum of §50,000, and that the National Hide & Leather Bank of Boston, Mass., became indebted to the Little Bock Bank in a like amount; (2) that the Little Bock Bank paid its note of $15,000 to ike American National Bank of Kansas City by transferring $15,000 from the National Hide & Leather Bank to the Kansas City Bank; and (3) that the Little Bock Bank paid its note of $28,000 to the National Bank of Commerce of St. Louis by transferring' $28,000 of the amount of its credit with the National Hide & Leather Bank to the St. Louis Bank. By count 3 of the indictment, the government charges that, in a report of the condition of the Little Rock Bank at the close of business on March 1, 1892, verified by Uie defendant as president on March 7, 1892, he, with the intent explained to you, knowingly entered the false statement that that bank had no bills payable, when it then owed the two notes just mentioned, aggregating $13,000. .
The report of the condition of the bank March 1, 1892, does state that the bank then had no bills payable. Mr. Dominick, of the American National Bank of Kansas City, testified that his bank then held a note of the little Rock Bank on which there was $15,000 unpaid, and that this note was not paid until March 17, 1892. Mr. Vanvlarcom, of the National Bank of Commerce, testified that his bank then held the note of the Little Rock Bank for §28,000, which was not paid until March 15,1892. If you believe this evidence, that report was false in its statement of the bills payable, and there is nothing for you to determine, upon this count, but the knowledge and intent of the defendant in making it; for he has admitted, in his own testimony, that he knew, on March 1st, that these notes were out, and that the holders of them were pressing for payment. The books of the bank do show entries to the effect charged in these counts (10,17, and 18) under the date of March 1, 1892. The defendant himself admits that he signed the slip directing these entries to be made, and both lie and Mr. Tost, the bookkeeper, testified that a certificate of deposit of the Little Bock Bank in favor of the National Hide & Leather Bank and two drafts of the Little Bock Bank on the National Hide & Leather Bank, one for $15,000 in favor of the Kansas City Bank, and one for $28,000 in favor of the St. Louis Bank, were drawn, either on the 1st or the 7th of March, and delivered to the defendant, and that these drafts were drawn to pay the two notes. It is admitted, or established hv the testimony of the defendant himself, that these drafts were never used to pay the notes,
But Mr. Allis testified that he obtained an offer of a loan of $50,-000 from the National Hide & Leather Bank on the certificate of deposit of the Little Rock Bank, and had brought this offer to the attention of his board of directors, who referred the matter to Mr. Kupferle. He says that Mr. Kupferle concluded to take the loan on the 1st of March, 1892, and that he on that day caused these entries to be made, and delivered the certificate of deposit and the drafts to Mr. Kupferle to be sent to the respective banks in whose favor they were drawn. He says that he supposed they were sent, and that the two notes were páid, until after he had verified his report to the comptroller on the 7th of March, 1892, and that he did not learn that they had not been until about March 14, 1892. On the other hand, Mr. Kupferle testifies that he never received the certificate or either of the drafts, and that he never heard of them until this trial. Mr. Yost, the bookkeeper, and Mr. Hays testified that these entries in the books were not made until March 7th or 8th,.and that they were made under the date of March 1, 1892, by making interlineations and erasures in the books, and they produce the books showing these interlineations and erasures. Mr. Yost, who received from Mr. Allis the slips, signed by him, which directed these entries, and-which, Mr. Allis says, were made on March 1, 1892, testifies that the defendant, on March 6, 1892, directed him to draw the drafts and the certificate, and to make these entries under the date of March 1st. It is for you to decide, in view of the testimony of Mr. Kupferle, Mr. Yost, and Mr. Hays, the interlineations and erasures in the books, and the probable interests of these various witnesses to testify falsely, whether the defendant directed these entries to be made on March 1st, when they bear date, or on March 6th. If you find that he gave the directions on March 1st, you must then consider whether he delivered the drafts and certificate to Mr.' Kupferle on that day, and whether or not he believed they were sent forward to the banks, so that he was himself mistaken or deceived when he verified his report on the 7th of March. But, if you find that these entries were directed to be made on March 6th, you will consider their effect, and the intent with which the direction was made. The effect of these entries was: (1) They made the bills payable appear upon the books to be $43,000 less than they actually were. (2) They made the demand certificates of the Little Rock Bank to appear upon the books to be $50,000 more than they actually were, thus making the total liabilities of the bank appear upon the books to be $7,000 more than they actually were. (3) They made the entire resources of the bank appear upon the books to be $7,000 more than they actually were, by making the amount due from other
By the fourth count the government charges that, in the report of the condition of the bank- on March 1, 1892, the defendant made a false entry of $69,659.29 as the amount due from other national banks, when the amount actually due from them was only $9,659.29. That this entry was made, and that it was false, is not disputed. Mr. Allis, you will remember, testifies that he did not know of the discrepancy; that he compared a pencil copy of the report furnished by Mr. Yost with the books, and found it correct; and that, when the written report was made, he compared that with the pencil report, and found that they agreed. On the other hand, the bookkeeper testified that this entry was made by the express direction of Mr. Allis, that he made up the figures from the hooks with him, and inserted them in the report by his direction. It is undisputed that, while the amount due from other national banks was reported at $60,000 more than it actually was, the amount due from approved reserve agents was reported at $60,000 less than it was, so that the aggregate amount of liabilities was not actually changed by this false entry. You must determine whether this entry was made by the direction of Mr. Allis. If it was, it is proper for you to consider the fact that it did not change the aggregate amount of the resources or liabilities of the bank, so far as this bears upon the defendant’s intent. A change of this character is not as strong evidence of an internt to injure or defraud the hank, as entries in its books that would enable the defendant to draw money without consideration would he; but if such an entry as this is knowingly made with the intent explained to you, it is as much a violation of the law as a more radical change. The law requires the entries to be true. It does not permit the officers of the bank to make false entries, or reports that, in their opinion, are just as good as true ones. Two wrongs do not make a right. It is no defense, for one who takes your horse, that he took another horse from your neighbor, that was just as good, and turned him over to you; and it is no defense for a bank officer, who knowingly makes a false entry in a report, with criminal intent, that he made another false entry to offset it, with like intent.
By the fifth count in the indictment, the government charges, in effect, that the defendant, as president of the hank, made a false entry in his report of the condition of the bank at the close of business March 1, 1892, with the intent explained, to you, hv which the overdrafts were made to appear §20,033.09 less than they actually were. The bookkeeper testifies that, in pursuance of the directions given by the defendant at that.meeting on Sunday, March 6th, he thereafter changed the books'so as to make them show the overdrafts, at the close of business, March 1, 1892, $20,033.09 less than
By the eighth and ninth counts in the indictment, the government charges that the defendant, as president of the bank, with the intent explained to you, knowingly made such false entries, in the report of the condition of the bank at the close of business on July 12, 1892, that the report showed the overdrafts to be about $21,000 less than they actually were, and the loans and discounts about $21,000 more than they actually were. The report does show the overdrafts to be $16,766.98 less than they appear to have been by the bank books on July 12, 1892, and it shows the loans and discounts $16,766.98 more than the books showed them to be. This report was sworn to by Mr. Allis July 18, 1892. . The bookkeeper, Yost, testifies that he made and delivered to Mr. Allis a pencil report, showing the condition of the bank at the close of business July 12, 1892, as the books showed it; that Mr. Allis returned it, and directed the report to be made out with the false entries of overdrafts and loans and discounts shown by the report. The defendant says that he did not change the pencil report, that he does not recollect that the verified report did not correspond with the books, and that this $16,766.98
The bookkeeper, Yost, testified that, on July 12, 1892, the books showed the individual account of Mr. Allis to he overdrawn $15,-681.(53; that Mr. Allis, on the 18th day of July, as he believes, directed him to make the books show, under the date of July 12, 1892, that the United States National Bank of Yew York then became indebted to the Little Rock Bank in the sum of $19,(511.68, and that the Little Rock Bank then became indebted to or received a deposit from the defendant of $19,641.68. He says he made the necessary interlineations and erasures to accomplish this, and then prepared the report on the basis of the changed books, and the further change o£ the $10,766.98 which has been spoken of. The entries, interlineations, and erasures of which he speaks do appeal- in the books. The bank books also show that, on July 18th, the United States Yafional Bank was credited $25,000, on July 19th, $25,000, and on August Kill it was charged $358.32, thus wiping out this charge of $49,641.68. The president of that bank testifies that no such transactions as these entries represent were ever had between his bank and the little Rock Bank; that his hank never owed that bank $49,641.68 on account of the deposit, by Allis at this time. If you believe this evidence, these entries regarding this item were all sham, false, and misleading, if you believe this testimony, there were no such transactions as these entries represent, and there is no truth in them. Their effect was this: (1) They wiped out the defendant's overdrafts of $15,684.63, and made the books show the overdrafts to be less by that amount than they actually were; and, as the report represented them $16,766.98 less than these doctored books showed them, the report, if you believe this evidence, stated these overdrafts at least $32,000 less than they actually were. (2) The false credit thus given the defendant for $49,641.68 not only wiped out his overdrafts, but-placed the surplus, $33,957.05, to the credit of his individual account, and thus made the individual deposits with the bank appear in the books, and in the report based on the books, $33,957.05 more than they actually were. (3) They gave Mr. Allis this false credit of $49,641.68, and enabled him to take that credit from the Little Rock Bank on this entry, upon no consideration but: this sham charge against a Yew York bank, that owed nothing on account of it. Mr. Allis admits that he signed the slips which authorized these entries, but testifies that they were made on July 12, 1892, and not at the later date at which the bookkeeper says he made them. He also testifies that these entries represented actual transactions at the lime. What these transactions were he does not explain, nor does he explain why it was that the $49,641.68 w'hich was thus charged to
By the first and second counts of the indictment the government charges that the defendant, as president of the bank, made certain false entries in the report of the condition of the bank at the close of business December 9, 1892, which was verified by him December 16, 1892, by which the individual deposits subject to check were staled to be $100,000 more than they actually were, and the notes and bills rediscounted were stated to be $100,000 less than they actually were. It is undisputed that these false entries were made in the report. The bookkeeper, Yost, testifies that he made a report in pencil, showing these items as they actually were upon the books, and gave it to Mr. Allis; that he handed it back to him with these two $100,000 changes made; and that he then made the written report according to this changed report, and the defendant verified it. On the other hand, the defendant testifies that he did not know the report was not right, and that he did not make or direct the changes in the pencil memorandum; that he compared the pencil memorandum with the books, and found it correct, and, after the written report was completed, he compared that with the pencil report, and found these two to be alike. The differences between this report and the books' are radical. They were in the two most important items in the report, in the two items most frequently examined and most carefully scrutinized by bankers, examiners, stockholders, depositors, and creditors, — the item of individual deposits subject to check, and nbtes and bills rediscounted. The change increased the individual deposits subject to check 42 per cent., and decreased the amount of bills and notes rediscounted 45 per cent. It is for you to.say whether the defendant knew of or directed this change, or whether so radical a change in these important items was made through his mistake or through a deception practiced upon him.
The court has reviewed the counts of this indictment, and called your attention to some of the important evidence in this case, in
On the other hand, the defendant is not on trial here for embezzlement, or abstraction or misapplication of funds, or for wrecking the bank. The evidence of credits and of moneys lie obtained from this bank is before you for the purpose of aiding you to determine who caused the entries in question to be made in the books and reports, and if you should find that the defendant made them or caused them to be made, and that they were false, then to assist you in deciding whether or not the defendant, who by the entries of February 22 and July 12, 1892, if yon find they were false, obtained this false credit of 899,641.68, on false charges against Eastern banks, that owed the Little Rock Bank nothing on account of them, — -whose account, if you believe the uncontradicted testimony of Mr. Hays, was overdrawn, in amounts varying from a few dollars to over $40,-000 184 days out of 222 days between February 2 and December 10, 1892,- — and wrho testifies that he owed the bank about §40,000 when it failed, made any of these entries knowingly, with any intent to injure or defraud the bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the bank, or any examiner appointed or thereafter to be appointed to examine its affairs. For this purpose, and for no other purpose, should you consider this evidence.
It is not necessary, in order to convict the defendant, that you should find him guilty of all the 17 offenses charged in the counts of this indictment submitted to you. If you have no reasonable doubt that be knowingly caused any one of the false entries charged in any of these counts to be made, with the intent explained to you,
The jury retired, and, after they bad deliberated for 24 hours, the court recalled them, and inquired if they had reached a verdict, to which the jury, through their foreman, responded that they had not. The court then asked if there was any portion of the charge of the court that it would be of assistance to them to have re-read, to which the foreman of the jury replied that there was a portion of the charge that was not fully understood by all the jury, — that portion in reference to the weight of the testimony of the witnesses. The court thereupon re-read that part of the charge which related to the conflict and weight of testimony of the witnesses.
After re-reading that part of the charge, the court further charged the jury as follows:
This is an important case. The trial has been long and expensive. Your failure to agree upon a verdict will necessitate another trial equally as expensive. The court is of the opinion that the case cannot be again tried better or more exhaustively than it has been on either side. It is therefore very desirable that you should agree upon a verdict. The court does not desire that any juror should surrender his conscientious convictions. On the other hand, each juror should perform his duty conscientiously and honestly, according to the law and the evidence. And, although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusions of his fellows, yet, in order to bring 12 minds to. a unanimous result, you must examine (he questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided, that you are selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to 12 men more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on one side or the other. In the present case the burden of proof is on the United States to establish its case beyond a reasonable doubt, and if, upon any count of the indictment submitted to you, you have a reasonable doubt, based upon the evidence, of the guilt of the defendant, you ought to acquit him on that count. But, in conferring together, you ought to pay proper respect to each other’s opinions, with a disposition to be convinced by each other’s arguments. And, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for acquittal, the minority ought*183 seriously to ask themselves whether they may not reasonably, and ought not to, doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows. In order to acquit the defendant of the 17 charges submitted to you, you must consider ail of them, and find that he is not guilty of any of them. On the other hand, if you find that he is guilty of any one of them, you should return a verdict of guilty. You may conduct your deliberations as you choo'se, but I suggest that you now retire and carefully consider again the evidence relating to a few counts, — for instance the fourteenth and fifteenth, or the eighth and ninth, — and to call your attention to them, more clearly I will again read to you that portion of the charge relating to the claims of the parties concerning these four counts.
Alter re-reading the portion, of the charge relating to the eighth and ninth and fourteenth and fifteenth counts of the indictment, the court made the following closing remarks to the jury:
Of course, gentlemen of the-jury, you must consider all the other parts of the charge heretofore read to you also. I have simply called your attention to these four counts, thinking, possibly, that I might assist you in arriving at a just conclusion. The court and jury are here to come to a just and righteous result. No doubt you are as anxious to reach it as am I. So anxious is the court that, having spent now two weeks in the trial of this cause, I am willing to stay here another, if by that means we may be able to reach a just and proper result in this trial. You may retire.
The jury returned a verdict of guilty on the fourteenth count of the indictment, upon which verdict the defendant was sentenced to imprisonment for the term of five years. A writ of error was sued out to the supreme court, whore the judgment was affirmed. See Allis v. U. S., 155 U. S. 117, 15 Sup. Ct. 36.