90 F. 257 | Cir. Ct. Del. | 1898
(charging jury). The indictment, as it now' stands, charges the defendant, Richard R. Kenney, with violating section 5209 of the Revised Statutes of the United States. That section is as follows:
“Sec. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any' order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in a.ny book, report, or statement of the association, with 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; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor,” &c.
The words “any association,” as used in section 5209 above quoted, relate to any national banking association organized under the laws of the United States. The First National Bank of Dover, in this District, is admitted to be, and to have been at the time of the alleged commission by the defendant of the offenses specified in the .indictment, such an association. The indictment against the defendant as returned by the grand jury originally contained twenty-five counts, numbered serially. A number of (he counts have been either disxosed of on demurrer or abandoned by the District Attorney, and are not for your consideration. The counts remaining for your consideration are counts numbered ten, eleven, twelve, thirteen, seventeen, and eighteen. You will bear in mind the numbers of the counts just mentioned which are for your consideration in order to avoid confusing any of them with other counts originally contained in the indictment. I repeat, to aid your recollection, and prevent any misunderstanding on your part, that the counts which remain open for your consideration are counts numbered ten, eleven, twelve, thirteen, seventeen and eighteen. These counts are before you in connection with the evidence applicable to them, and embrace all the issues which are for vour determination. The counts numbered ten, eleven, twelve and thirteen, charge in substance that the defendant did, with intent to injure and defraud The First National Bank of Dover, wilfully, unlawfully and fraudulently aid and abet William N. Boggs, who was the teller, wilfully, unlawfully and fraudulently to misapply the mon
Before adverting to the evidence in the case I shall now bring to
So if you are satisfied that there was a fraudulent scheme, understanding or agreement between the defendant and William N. Boggs that the eight checks drawn by the defendant on The First
William N. Boggs has pleaded guilty to the charge of unlawfully embezzling, abstracting and misapplying the moneys, funds and credits of The First National Bank of Dover, and in this case he has testified in the character of an accomplice. While the testimony of an accomplice should always be received with caution and weighed and scrutinized with great care by the jury, the accomplice
William N. Boggs testified, among other things, to the effect that his defalcation at The First National Bank of Dover, first became known tó the defendant in the early part of October, 1895; that at that time his defalcation was from $20,000 to $30,000; that he told the defendant, as his counsel, at that time the state of affairs as nearly as he could and the defendant advised him in relation to certain matters connected with them; that he, William N. Boggs, was greatly encouraged by the interview he had with the defendant at that time; that the defendant inquired at that time what
The defendant testified, among other things, to the effect that he had known William N. Boggs since about 1881; that William N. Boggs was a very much younger man than the defendant; that the defendant became counsel for William N. Boggs in 1892 or 1893; that up to that time the defendant's relation with William N. Boggs had not been intimate, and that the defendant never had any social intimacy at all with William N. Boggs; that the defendant first learned of the defalcation of William N. Boggs to The First National Bank of Dover in November, 1894, soon after the general election; that at that time William N. Boggs came to the defendant’s house at night and told the defendant that he, William N. Boggs, was in trouble with the bank; that the defendant was surprised and horrified to hear it; that Williaín N. Boggs came to the defendant as his counsel for advice as to what he, William N. Boggs, should do; that the defendant told William N. Boggs, "you have friends and relations enough who can fix this matter up before it becomes public;” that William N. Boggs did not inform the defendant of the amount of his defalcation or of the way in which it occurred, nor did the defendant ask him about the amount of the shortage, either then or at any other time; that this interview did not last ten minutes, and William N. Boggs at its conclusion left the defendant’s house seeming to be verypnuch relieved; that at no time after this interview did William n! Boggs make any reference to the defalcation to the defendant until about a week before his flight from Dover, which occurred May 29, 1897; that the defendant was positive that the interview occurred in November, 1894; that in the fall of 1895 William N. Boggs spoke to the defendant about his trouble with the directors of the bank because of his playing cards; that William N. Boggs told the defendant that he had satisfied the directors that he would quit playing cards, and that he had seen Mr. Massey in Philadelphia, one of his bondsmen, upon the subject, and Mr. Massey told him, William N. Boggs, that he would forgive him for playing cards and gambling if he were all right in his accounts with the bank; that William N. Boggs told the defendant that he had satisfied Mr. Massey; that the defendant had every reason to believe that William N. Boggs was square with the bank, and that he was anparently in funds during 1895 and 1890; that from the last of 1895 to October, 1896, William N. Boggs had, exclusive of his salary as teller and his notarial fees, cash or other property amounting in the aggregate to $4282.13, and William N. Boggs frequently told the defendant that he, William N. Boggs, was making a large amount of money in speculating and gambling operations; that the defendant had no knowledge whatsoever of the holding out of his checks upon the bank as set forth in the indictment; that he knew at various times during the period covered by the alleged fraudulent checks that he had overdrawn his account in the bank and had been called upon by the officers of the bank to make certain checks good; that he had no idea of the condition of his account as testified to on the part of the government;
Your verdict should represent the opinion of each member of your body, after an intelligent and conscientious comparison and consideration in the jury room of the views of the individual jurors. Your investigation of the evidence should be marked with due deliberation, and your minds should remain open to conviction by arguments which commend themselves to your judgment. The very object of the jury system is to secure unanimity through comparison of the views and through arguments among the jurors themselves. If a large majority of the jurors, after deliberation in the jury room, differ in their conclusions with the minority, it is proper for those composing such minority, in view of the fact of such difference, to review the grounds of their own conclusions in order that, if possible, unanimity may be reached in accordance with the principles of law heretofore laid down. But no juror should acquiesce against his individual judgment in the conclusions reached by other jurors, whether constituting a majority or a minority of your whole body. For your verdict must represent the real opinion and judgment of each member of .the jury. The guilt or innocence of the defendant is to be determined by you as intelligent and conscientious men, upon the evidence adduced in this case and upon that alone. A grave and solemn responsibility rests upon you. No public clamor, no sentiment of hostility or sympathy, no consideration of consequences which may result from your verdict, should be permitted in any manner to influence your deliberations or control your verdict. If upon all the evidence in the case you are not satisfied beyond a reasonable doubt of the guilt of the defendant on one or more of the counts of the indictment remaining open for your consideration, you should acquit him; but if upon all thé evidence in the case you are satisfied beyond a reasonable doubt that the defendant is guilty in manner and form as he stands indicted on some one or more of those counts, you should return a verdict of guilty. If you so find a verdict of guilty it may be a general verdict of guilty or a verdict of guilty as to all or any of such counts now remaining in the indictment, as the evidence shall warrant.
The jury, after a deliberation of seventy-two hours, were unable to agree, and were discharged by the court.