Harper v. United States

170 F. 385, 95 C.C.A. 555, 1909 U.S. App. LEXIS 4715

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 30, 1909
• Docket: No. 2,741
• Status: Published

Opinions

RINER, District Judge.

At the October term of the United States Court for the Northern District of Indian Territory, sitting at Yinita, the plaintiff in error, hereafter called the defendant, was indicted for making a false entry in a report to the Comptroller of the Currency, showing the resources and liabilities of the First National Bank of Miami, Ind. T.

The statute upon which this indictment is based is section 5209 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3497), being a portion of the national banking act, and, so far as it applies to this case, the section is as follows:

“See. 5209. Every president, director, cashier, teller, clerk or agent of any association * * * who makes any false entry in any book, report, or statement of the association, with intent in either case, to injure or defraud the association * * * or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association * * * shall be deemed guilty of a misdemeanor * * *.”

The indictment contains but one count, and is in the following words:

“United Stales of America, Indian Territory, Northern District — ss.:

“In the United States Court for the Northern District of the Indian Territory, sitting- at Viuiia, October Term, 3904.

“United Stales vs. S. D. Harper. Indictment for violation of Section 5209,

It. S. U. S.

“The grand jurors of (he United States of America, duly selected, impaneled, sworn and charged, to impure within and for the body of the Northern district of the Indian Territory, in the name and by the authority of the United States of America, upon their oaths do find, present, and charge that on the 14th day of February, A. i). 1903, and within the Northern district of the Indian Territory, one ¡3. D. Harper, being- then and there the duly elected, qualified, and acting cashier of the First National Bank of Miami, Indian Territory, a corporation duly organized and existing under and by virtue of the laws of the United States in force in the Indian Territory, unlawfully and feloniously, and with the unlawful and felonious intent in him, the said S. IX Harper, then and there to deceive one E. B. Frayser, the said E. B. Frayser being then and there the duly elected, qualified, aud acting president of the said First National Bank, did make a certain false entry in.a certain report showing- the resources and liabilities of said First National Bank on the tlth day of February, A. II. 1903, to the Comptroller of the Currency by then and there stating in said report (hat the liability of him, the said S. D. Harper, as payer to the said First National Bank, was the sum of thirty-four hundred and seventy (3,470) dollars, whereas, in truth and in fact, the liability of him, the said S. D. Harper, as aforesaid, was in the sum of fifty-four hundred and ninety-five (5,495) dollars; and the grand jurors aforesaid, upon their oaths aforesaid, do find, present and charge that he, the said S. D. Harper, then and there well knew and believed the said liability of him, the said S. D. Harper, as pajer to the said First National Bank, on said (5th day of February, A. D. 1903, as aforesaid, was then and there in the amount of fifty-four hundred and ninety-five dollars; contrary to the form of statute in such case made and provided, and against the peace and dignity of the United States of America.”

To this indictment the defendant demurred; the demurrer was overruled, an exception taken, and on the same day the case proceeded to trial, resulting in a verdict finding the defendant guilty. , The case was then appealed to the Court of Appeals in the Indian Territory, where the judgment was affirmed, and the case is here for our consideration upon a writ of error to that court.

Fourteen errors are assigned, but counsel in their brief group assignments 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, and 13 and argued them together. They all relate to the one general subject — the sufficiency of the indictment, and the rulings of the court upon objections thereto.

It must be conceded that the indictment is rather loosely and carelessly drawn, and we cannot forego the suggestion, at the outset, that in all cases of this character it is safer and better in the preparation of indictments to follow approved forms and precedents. But the question here is not whether the indictment, as was said by the Court of Appeals for the Ninth Circuit, in Peters v. United States, 94 Fed. 327, 36 C. C. A. 105, “might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprised the defendant of what he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” United States v. Simmons, 96 U. S. 362, 24 L. Ed. 819; United States v. Carll, 105 U. S. 612, 26 L. Ed. 1135; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; United States v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, 27 L. Ed. 520.

It is undoubtedly a well-established rule in criminal pleading that the indictment must be sufficient to fully apprise the defendant of the charge made against him, and that no statute could make valid an indictment that deprived him of such right. But it must, as was said by the Supreme Court in Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830, “be borne in mind that the object of criminal proceedings is to 'convict the guilty, as well as to shield the innocent, and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove.”

The indictment sets out the fact that the defendant, on the 14th of February, 1903, was then and there the duly elected, qualified, and acting cashier of the First National Bank of Miami, Ind. T., a corporation duly organized and existing under and by virtue of the laws of the United States. It then proceeds to charge that he unlawfully and feloniously, and with the unlawful and felonious intent to deceive the duly elected, qualified, and acting president of the bank, “did make a certain false entry in a certain report showing the resources and liabilities of the said First National Bank on the 6th day of February, A. D. 1903, to the Comptroller of the Currency.” It is objected that this statement is. not sufficient to show that the defendant was the cashier of the First National Bank of Miami, a national banking association which was carrying on a banking business, or that the report in which the false entry is charged to have .been made was a report made by the association. These objections, we think, are .without merit.

The indictment charged that the defendant was the duly elected, qualified, and acting cashier, and that the president was the duly elected, qualified,, and acting president. It seems to us that it is rather farfetched to say that this does not sufficiently show that the bank was carrying on a banking business, and that the averment that the report was made to the Comptroller does not necessarily imply that it was made by the association. However that may be, the charge in the indictment is not the making or the failure to make a report required by section 5211 (page 3498), but it is the making of a false entry in a report under section 5209. The failure to make the report or reports required by section 5211 subjects the association to a penalty under section 5213 (page 3499), whereas the penalty for the offense charged in this indictment is fixed by section 5209, which makes it a misdemeanor for a president, director, cashier, teller, clerk, or agent of an association to make a false entry in any report, with intent to injure or defraud the association or to deceive any officer of the association. Had the indictment been against the association-for a failure to, make the report required by section 5211, it would then have been necessary to aver that the report was one required to be made by the association, but as the report mentioned in the indictment is referred to “only for the purpose of showing that it was made to the Comptroller, the person authorized by law to call for such a report, it need not be described with technical accuracy.” Cochran & Sayre v. United States, 157 U. S. 386, 15 Sup. Ct. 628, 39 L. Ed. 701.

The date when the report was made, the date as to which the condition of the bank is given, and the fact that the report was made to the Comptroller of the Currency, are all set out in the indictment with sufficient accuracy, so that we think there is no possibility that any mistake or misapprehension could arise as to the offense charged, or that the defendant could in any way be misled or prejudiced in his defense. Some things may be presumed even in criminal pleading. Where a report is referred to in an indictment, giving its date and the person to whom made, it certainly cannot be necessary to require it to contain the minute conditions as to the time of sending, that it was sent pursuant to a call of the Comptroller, and the contents of the report specifically, as required by another section of the law. - The fact that the report in this case was made to the Comptroller of the Currency by the cashier of the bank, stating the condition of the bank upon a certain day, authorizes, we think, the presumption that it was a report made by the association under section 5211.

But irrespective of these considerations, it has been decided by this court that an offense is not confined to reports made to the Comptroller of the Currency, pursuant to the requirements of section 5211. In Bacon v. United States, 97 Fed. 35, 38 C. C. A. 37, Judge Thayer, in the course of the opinion, said:

“It will be observed Hint section 5200, in defining- the offense of making a false report, contains no such limitation as that sought to ho imposed. The language of the law is general that ‘every president, director, cashier, teller, clerk or agent of any association s * * who makes any false entry in any book, report or statement of the association, with intent,’ etc., ‘shall lie deemed guilty of a misdemeanor, * - * ’ which language may as well include a false report voluntarily made by a bank official to the Comptroller of the Currency to influence his action, and accomplish some fraudulent purpose, as a false report made in pursuance of a call or request from that officer. "We perceive no reason why a false report; or statement made voluntarily to the Comptroller of the Currency in relation to the condition of a national bank for the purpose of inducing some action on the Comptroller’s pari, or of forestalling certain action which he contemplates taking, should not he deemed an offense, as well as the making of a false report pursuant . to a call or request from that officer, provided the act is done with the intent specified in the statute. The law was designed, we think, to prevent hank officials and employes from making any false entry in the books of the bank, and from making any false representations concerning its financial condition and resources in any report or statement which they may see tit to make in behalf of the hank to the Comptroller of the Currency, or to persons appointed to examine its condition, for the purpose of influencing their action” — citing with approval the case of United States v. Booker (D. C.) 80 Fed. 376, to the same effect.

And in United States v. Hughitt (D. C.) 45 Fed. 47, it was said:

“The statute makes no .provision for the keeping of books or the making' of statements eo nomine. And yet it was clearly the intention of the lawmakers to punish the making of false entries, not only in hooks, but in statements of the condition of the bank, if such entries were made with intent to deceive. Section 5211 provides for five reports annually, lrat if the association sees fit to volunteer other reports containing false entries made with the express purpose of deceiving the officers of the law as to the true condition of the bank, can it be doubted that such reports would be within the provisions of section 5209? A construction that they would not be, defeats the obvious intent and purpose of the law. By sending a false report to the Comptroller or an examiner, at a critical period, suspicion might be allayed and an unfounded confidence created, under cover of which the bank could be plundered and the grossest frauds perpetrated with impunity. It cannot be doubted that a report, whether called for by the Comptroller or not, which is a report, in the usual form, of the condition of the association, made by its president in his official capacity and transmitted to the'Comptroller, is within the section in question, provided it contains false entries made with intent to deceive. . A bank officer who has made such a report cannot escape punishment by showing that the fraud was voluntarily committed, and at a time when he was under no obligation to furnish any report or statement whatever. ■ The statute does not confine the crime of making false entries to ‘a report made to the Comptroller under the provisions of section 5211 and pursuant to his request’; it covers ‘any report or statement.’ ”

In this connection, reference may be made to section 1025 of the Revised Statutes (U. S. Comp. St. 1901, p. 720), which provides that no indictment shall be deemed insufficient by reason of any defect or imperfection in the matter of form only which shall not tend to prejudice the defendant. This section of the statutes, while it is not to be construed as permitting the omission of any matter of substance, we think, is properly applicable to an indictment where the only defect complained of is that some element of the offense is stated loosely and without technical accuracy.

' As already indicated, the indictment would be more satisfactory if it gave more full information in some of the respects suggested by counsel for the defendant, but still we think, when tested by the rules already suggested, that as it stands it must be held to be sufficient.

The fourth error assigned is that the trial court erred in not permitting W. P. Gatewood, a witness for the defendant, to testify to the moral character of the defendant. The witness was permitted to testify that he had known defendant for about six years; that he knew his reputation for honesty during the time he resided at Vinita, and that it was good, but that he did not know his reputation for honesty during the time he had resided at Miami. The question which the court declined to permit him to answer was: “Are you acquainted with his general reputation in the neighborhood, during the time he resided here, for morality and sobriety?” Objection was made to ■this question, and the objection sustained. Gatewood and three other witnesses were allowed to testify to the general reputation of the defendant, in the neighborhood in which he lived, for truthfulness, veracity, and honesty, and, within the rule stated by Greenleaf, vol. 3, § 25, “Evidence, when admissible, ought to be restricted to the trait of character which is in issue; or, as it is elsewhere expressed, ought' to bear some analogy and reference to the nature of the charge; it being obviously irrelevant and absurd, on a charge of stealing, to inquire into the prisoner’s loyalty; or, on a trial-for treason, to inquire into his character for honesty in his private dealings” — we think the court committed no error in ruling out the answer to this question.

The fifth and fourteenth assignments of error relate to'the following instruction given by the court to the jury:

“The court instructs you that every sane man is presumed to intend the consequences oi' each act; that this defendant is presumed to have intended the consequences of his signing this statement and swearing to it; that he is presumed to have intended to deceive the officers of the bank, including Mr. Frayser, iis president, as well as the Comptroller of the Currency; that,.by reason of his making this report and of swearing to this report, he is presumed, if that report were untrue, to publish to Frayser and to the world, and to the Comptroller of the Currency, an untrue report; and it is his duty to show to this jury why it was, and under what circumstances he was justified in issuing such a report. If he has come into this court and shown you that there is a reason for his producing that report other than to deceive; if he lias given a reasonable explanation how he came to make that report false, if it is false, then it is your duty, if you believe his explanation, and it is a reasonable explanation, or if a reasonable doubt arises by reason of his explanation, to acquit him; but if (his evidence convinces your minds to a moral certainty that on that day, with full knowledge of the fact that he owed that bank a larger sum of money than that contained in his statement, he made up that; statement and swore to it for the purpose of deceiving the president and the Comptroller and the other officers of the bank, it is your duty to convict that man, because he is presumed to have intended just exactly what the consequences of his acts were if they were a deception upon these people.”

It is insisted by counsel that this instruction was misleading, in that the court said, “If he made up that statement and swore to it for the purpose of deceiving the president and the Comptroller and the other officers of the bank, it is your duty to convict that man,” whereas the charge in the indictment was that the false report was made by the defendant with intent to deceive Frayser, the president. Standing alone, this instruction might he susceptible of the criticism made by counsel, but when we come to consider the entire charge of the court, which we must do in determining this question, we do not think the jury could have been misled by the portion of the instructions excepted to. The court had already said to the jury in another portion of its charge:

“Before the government can expect conviction in this case it must show to the jury, by evidence which shall satisfy you beyond a reasonable doubt, that within the Northern district of the Indian Territory, and on or about the 14th day of February, S. It. Harper, the defendant, was the cashier of the First National Bank of Miami; that on the 6th day of February, 1903, he made a report of the condition of the bank to the Comptroller of the Currency, which report contained certain false entries with reference to his personal liabilities to the hank with intent 1o deceive K. B. Frayser, the president of the bank, by stating in said report that his liabilities to the bank were only !?3,470, whereas at the time his liabilities to the bank were S5,4!)5. These allegations must be proven to your satisfaction, by evidence beyond a reasonable doubt”

The court further charged that:

“The defendant is to be presumed innocent of this offense until the government makes out ils case as to the crime charged and each ingredient constituting the crime by evidence which satisfies you, beyond a reasonable doubt, of his guilt. This presumption extends with him in the case, as to this crime and each element of if, until it is overcome by evidence which establishes his guilt beyond a reasonable doubt.”

These instructions clearly stated to the jury the issue upon which they were to pass and the degree of proof necessary to warrant a conviction. And, after a careful examination of the entire charge of the court to the jury, we are of opitiion that it fairly stated the law applicable to the facts as disclosed by the evidence, and that the jury ■could not have been misled by the short excerpt above quoted, taken .from the general charge, to which the exception is directed.

A thorough examination of the entire record discloses no errors which would authorize a reversal of the judgment, and the judgment of affirmance entered by the United States Court of Appeals in the Indian Territory, and the judgment of the United States Court for the Northern district of the Indian Territory, are affirmed.