42 F. 599 | U.S. Circuit Court for the District of Southern Ohio | 1889
(charging jury.') Obviously, this trial has boon one of grave concern to the people of Cincinnati. The defendants have each established, by the best proof, a reputation for honesty and integrity at the time of'tho transactions involved which is beyond all question. Naturally, this would be so; for, without such a reputation, one would not be allowed to occupy the place of president or vice-president of a national bank. Whether honest or dishonest in fact, one admitted to such places must have at least an assured reputation for integrity; and hence it is that the class of offenses denounced by the banking act of congress always
The object of the statute, so often read in your hearing, about making false entries, or causing them to be made, is to secure at all times a truthful exhibit of the condition of the bank. The requirement of a report to the comptroller of the currency is intended to secure that supervision of the bank which the government assumes in the interest of the system, and of the people who resort to it on the invitation of the government, when it establishes the system, and promises to protect it by wise legislation. The object of making publication in-the newspapers is to inform
We are inclined to think also, that it is a crime, under this act, to make a false report to the comptroller, with whatever motive, because there inheres in that act, necessarily, an intent to deceive the agents appointed by him to inspect the bank, if he be not himself such agent, as it may be he is; just as there inheres in the very act of publishing a false statement to the public the statutory intent to injure “any other company, body politic or corporate, or any individual person,” which phrase is used to mean the public itself; and no given company, body politic or corporate, or individual person need be named or proved as the victim of the injury, as no given “agent appointed to examine the affairs of the association” need bo named as the victim of that particular deceit.
Referring, also, to a former clause of this act, we are inclined to thiiik that, if anything is established by this proof, it is that the directors who entered into the syndicate to purchase the stock of the bank by stripping the bank itself of the money necessary to pay for it, under the circumstances shown here of taking the money under the guise of loans to themselves wdthout any security, or upon inadequate security, were guilty of abstraction or willful misapplication of the funds of the bank. It was this desertion of their trust that brought upon them the dire necessity of making false reports and entries, no doubt; but it furnishes, certainly, no excuse for doing that thing, and makes the doing of it none the loss a violation of this law. But, strange to say, neither those defendants, nor those who were jointly concerned in these violations of the statute along with them, have been charged by this indictment with any of the offenses which we have just named, but only with another offense, which, in relation to the facts of this case, is more difficult of proof, and will give you the most trouble. The guilty intention as to those other offenses grows out of the very facts themselves, beyond all question; but, as to that selected for this indictment, the guilty intention is fairly a matter of dispute, and that dispute you must settle here and now. It is about the only dispute in the case. AH others are important only by relation to this, and the bearing they will have upon its solution by you. We must therefore caution you that you are not trying these defendants, upon the facts in proof before you, for any wrong-doing as to the funds
In the orderly consideration of the subject, your first inquiry would be, who are the officers of the bank referred to by this act of congress? By the rule of association of words in the statute, first clearly pointed out by Mr. Hooper, there cannot be much doubt that congress conceived that a teller is one of the officers of the bank; and this is, undoubtedly, the general understanding outside of banks, as shown by the definition of the word by lexicographers, laymen, and lawyers, and by the books on banking found in our law libraries. We think that the decisions of the supreme court of the United States also indicates that the word has been so understood by that tribunal. Yet congress was not organizing a bank by this statute, nor was it declaring who should or should not be thp officers of the bank authorized by this banking act. On the contrary, by another section, the power is given to the board of directors to appoint “other officers,” after having named the president, vice-president, and cashier as three of them that are fixed in the organization, and also power to define their duties, etc. We think, therefore, that it depends on the circumstances connected with the bank itself whether the teller is an officer, or only an employe or clerk. We find in the action of the board of directors and the by-laws of the Metropolitan National 'Bank no evidence that the teller was appointed or treated as an officer in that bank, but, on the contrary, that he was regarded as a clerk, and that the custom of banks is that way in Cincinnati. We wish to reserve any opinion whether or not this would be, if at all, a controlling consideration in construing this act, if some false entry were made with especial reference to the duties of the teller, under circumstances showing a well-defined purpose to deceive him to the injury of the bank. This question of being an officer or not — being an officer under this act, and under all similar acts — may depend on the very especial circumstances of each case. But, on the circumstances here, it is plain that Roth, the paying teller, had no duties or business relations connected with these false entries that would make a deception as to him either desirable or necessary; and this circumstance, taken in connection with all else that is in the case, negatives the idea that there could have been an intention specifically to deceive him, or generally to deceive a paying teller. And, since we would not support a verdict based on the facts in this case in
The facts might he submitted to you, so far as they concern the receiving teller, Reigel. He did have a necessary connection, in his capacity as receiving teller, with these transactions. Indeed, he made some of the very false entries under consideration, and it was through him, in that relation, that the falsity must get upon the books. Any deceit of his to accomplish that purpose might be criminal; for this relation of officer to the bank, under this statute, depends on the exigencies of the situation, and the functionary’s particular duty in that business which is in hand. It is an elastic word; and, in aid of the general purpose of congress in the public interest, as involved in this legislation, the word may be made to include functionaries not generally considered officers in rank, but having duties to perform which in fact belong to the category of official acts, as indicated by the statute. U. S. v. Trice, 30 Fed. Rep. 490. And this is not a violation of the rule of strict construction for penal acts, of which wo are not unmindful. Id.; U. S. v. Huggett, 40 Fed. Rep. 636. But the government does not claim that in this case there was any purpose to deceive Reigel, either generally or specifically; and, if it did, there is no proof of such general or special intent, as to him. He was a cheerful and ready accomplice in the nefarious business of promulgating a false report to deceive the comptroller and the public. It was only a question of method, not morals, with him. And we imagine that this proof raises a strong presumption that the same may be said of others involved in that business, of higher rank than Reigel, though it is not confessed upon the witness stand. But of this you are to be the judges, and not the court; though we are in duty bound to submit that question, with the rest, to you. There is not the least doubt, as to Rei-gel, that he had full knowledge, was not deceived in fact, and that there was not the least occasion or necessity for deceiving him with false entries in order to deceive the comptroller and the public. And so wo may advise you to discard him also, in your consideration as to the officers of the bank; and this, whatever view you may take of the word “officer” in the statute.
As to the directors there is not the shade of doubtful construction of this act. They arc not only officers, but managers, of our national banks. They come within every sense and meaning of the word “officer,” and are within the rule of the association of words in the act already referred to, and of the decisions cited. This act is not like those construed in Association v. Mayes, 4 Abb. Dec. 183, and Com. v. Christian, 9 Phila. 556. The president and vice-president are only directors with official titles, and charged with doing in detail what the directors are charged with doing generally. They are only agents of the directory; and it is well enough that these cases should teach the directors of national banks that they cannot, by inactivity, neglect of duty, and inattention, shirk their responsibility or escape their share of blame for such wrong-doing as is displayed in this proof, in plain violation of this act of congress. They are
But if you believe from the evidence that.these men were engaged in a common cause, were embarked in a more or less common enterprise of speculation, were involved in a more or loss common peril, were impelled by a more or less common necessity to put forth a false report about the condition of the bank, of which they had full knowledge, and to ma'kd false entries of conformity upon the books, — we say, if you believe all this, you should not convict these defendants. Even common criminals, engaged in common enterprises, do not find it essential to deceive each other, except when they come to divide the fruits of crime; and we are of the opinion that offenders under the particular clause under wlxich this indictment is drawn may so include all the officers of a bank, by combination among them, that all intent to deceive any officer by any one of the offenders would be quite impossible. It is for you to say whether that is the condition, as shown by this proof, or whether the facts are as the government insists they are: that these defendants had to deceive Edwards, Roth, and Duckworth, and the rest, in order to deceive the comptroller and the public. The district attorney does not claim, nor is there any proof, that Directors Ryan and Bonte were involved in .the confessed wrong-doing, either as to the syndicate operations or as to the false entries; nor did the defendants rely upon any participation by them in the “enterprise,” as they call it. The district attorney claims that they were deceived, necessarily, by the false report and the false entries in the books. It is for you to say if this be so beyond a reasonable doubt. Their duty of supervision was plain. Their power to check the wrongdoing, when coming to their knowledge, was undoubted. Now, did the defendants intend to deceive.them in order to prevent the exercise of that power, or to procure their quiescence?
- Too much stress on both sides of the argument has been put upon a bare, naked intent to deceive some person for the mere purpose of deceit. That is not what the statute means. It means a deception which has a purpose behind it to accomplish, an end to gain, a design to carry out, or an aim to be attained. That is the legal definition of “intent,” as applied to an intention to deceive, as well as any other. Hence, when you consider this subject, as to Ryan aiad Bonte, for example, you may
It is not necessary to enter upon, or be confused, by the metaphysics of the subject. -Practically, you are to judge, on the proof, whether the forbidden intent is an inexorable inference from the proven facts, or is excluded by them, or is a matter of reasonable doubt. U. S. v. Jackson, 25 Fed. Rep. 548. Let us illustrate this process of judgment, for your guidance. If Edwards, Roth, and Duckworth are found by you to have been men of that stern quality that under no circumstances would the one swear to a false statement known by him to be false, nor the others to attest that falsehood officially, when known by them to be a falsehood, does not the necessity of deceiving them into making the oath and attestation at once appear? Does the proof show-this? It is for you to say. If this be true, as you find, would it not be a potential circumstance to
As to all these officers, the fact of deceit, in fact, is a circumstance of proof to aid you in determining the intention to deceive them, but not a conclusive circumstance; for one may be deceived when there was in fact no intention to deceive him. On the other hand, again, as to all these officers, the circumstance, if you find it so, that one as to whom the defendants intended deceit was not in truth deceived, is not conclusive against the intention to deceive; for one shall not escape because the design to be accomplished by an intended deceit failed of its purpose.
Thus it is, gentlemen of the jury. You go over the proof, in all its details, — all the proof, — and weigh it well, and determine this fact: Did these defendants intend to deceive the officers of the bank by these false entries, and are you satisfied of this, beyond a reasonable doubt.
Before we come to the law of reasonable doubt, let us say something as to the effect of proof of character, in your process of weighing the evidence and applying it to this issue. Character of the highest kind is no defense against crime actually committed. But where it is a matter of doubt, on the facts, whether any crime has been committed, character is a circumstance to turn the mind in favor of the defendant. If one occupying a room with you in the public inn leaves, in the night, with your money, and, with hue and cry, you follow, to find that he has appropriated it to his own use, no amount of good character, or number of witnesses to it, would save the culprit. But if you found the man with the money intact, and no incriminating circumstances, except its possession, and his having left you with it stealthily, his good character would naturally turn your judgment in his favor, and you would accept his explanation of somnambulism, or of practical jesting, or what not, as true, if not satisfactory. In other words, character will explain equivocal conduct in favor of innocence, but will not outweigh satisfactory proof of guilt.
But we have constantly said that you cannot convict unless you are' satisfied of guilt beyond a reasonable doubt. What does this mean,— “reasonable doubt?” A reasonable doubt is an honest misgiving, gen
On request as to “jurors unknown,” I say that this averment in the indictment does not mean that the officers of the bank were not known to the grand jury, but that which of them was deceived was not known so as to be specified.