HINCKS, Circuit Judge.
The defendant was convicted upon an indictment containing four counts involving use of the mails to defraud, in violation of 18 U.S.C.A. § 1341, and four counts for aiding and abetting a bank officer in misapplying bank funds in violation of 18 U.S.C.A. §§ 656 and 2. He was given an aggregate sentence of ten years, five years on the first mail fraud count with concurrent sentences upon the other mail fraud counts; and five years on each of the misapplication counts, the sentences on the misapplication counts running concurrently with each other but consecutively to the mail fraud sentences. From the judgments of conviction, he appeals.
The mail fraud counts alleged, as a part of a scheme to defraud, that the defendant on October 30, 1956 opened a personal checking account under the name of “Edward DeGone” in the Liberty Bank of Buffalo, Niagara Falls Office (hereinafter called the Niagara Bank) and on November 30, 1956 opened a special checking account in his wife’s name at the Manufacturers and Traders Trust Company, A. M. & A. Branch (hereinafter called the Buffalo Bank); and that thereafter between March 15, 1957 and May 13, 1957 he cashed or deposited at the Buffalo Bank checks drawn on the said Niagara account knowing at the time that there were insufficient funds in the Niagara account to pay said checks and that he was without funds to pay said checks when the same would be presented for payment.1 These counts further alleged that by depositing in the Niagara account a sufficient portion of the proceeds thus obtained to cover similar checks previously cashed or deposited by the Buffalo Bank, the defendant “did represent to the [Buffalo Bank] that there were sufficient funds in the [Ni-[704]*704agaraj account to meet and pay” the checks previously drawn; that such representations were false and fraudulent, the Niagara account at all times being insufficient to meet all the checks previously cashed by the Buffalo Bank, and were intended to defraud the Bank to the defendant’s profit. Each count alleged a separate mailing. Each of these counts, we hold, sufficiently charged a check “kiting” scheme in violation of 18 U.S.C.A. § 1341. Federman v. United States, 7 Cir., 36 F.2d 441, certiorari denied 281 U.S. 729, 50 S.Ct. 246, 74 L.Ed. 1146; Henderson v. United States, 6 Cir., 202 F.2d 400; Deschenes v. United States, 10 Cir., 224 F.2d 688; United States v. Feldman, 2 Cir., 136 F.2d 394; United States v. Lowe, supra.
The defendant’s contention that there was insufficient evidence to sustain the verdicts on the mail fraud counts, is without merit. There was evidence to show that when the defendant opened his account at the Buffalo Bank on November 30, 1956, through Rick, the manager of the Bank, he was personally indebted to Rick in the amount of $9,500; that shortly thereafter, in December 1956, Rick, whose authority to make unsecured loans was limited to $2,500, cashed checks drawn by him on the Niagara Bank which were returned for insufficient funds. The aggregate amount of these checks in excess of balances in the defendant’s Buffalo account when the checks were returned, was about $11,-000. Rick then demanded of the defendant that he make the checks good, saying: “I can’t continue to hold them indefinitely.” The defendant promised to make the checks good but some two months later the Buffalo Bank held uncollected checks of the defendant to an even greater amount. Thereafter Rick advanced an aggregate of $13,000 of his ■personal funds to cover the defendant's uncollected checks: as he himself testified, “As checks came in and they weren’t provided for I covered them myself with my own personal funds.” For some, at least, of the funds so advanced Rick took notes from the defendant (payable to Rick personally) which were never paid. Against this background must be evaluated the subsequent transactions occurring between March 15 and May 13,1957, as set forth in the mail fraud counts. As shown by undisputed evidence in abundance, the defendant repeatedly obtained from the Buffalo Bank, through Rick on Niagara checks known by Rick to be worthless, cash which he deposited in the Niagara account to cover earlier Niagara checks, for which the Buffalo Bank had given cash or credits and which Rick, in connivance with the defendant, had caused the Bank to hold as “cash items.” By this scheme, new checks, also worthless, were substituted for older ones and deposits in the Niagara account of the proceeds of the new cheeks made it possible for the Buffalo Bank to collect the older checks in the usual course with a semblance of regularity. The effect was to conceal the earlier fraud and thus to assist the defendant again to pass off his worthless checks in ever larger amounts on the Buffalo Bank.2 When at last through the illness of the bank’s manager the fraud came to light the Buffalo Bank was left with worthless uncollected checks of the defendant in an aggregate amount of over $60,000.
In this connection, the defendant stresses the alleged absence of evidence to prove that, as charged in these counts, he made false representations to the Buffalo Bank as to the state of his Niagara account. But this criticism is untenable for several reasons. The mere presentation of the Niagara checks to the Buffalo Bank for cash or credit was an implied representation to the Buffalo Bank that there were sufficient funds in the Niagara account to cover them. United States v. Lowe, supra. Although one of the Bank officers knew that the representation was false, the representa[705]*705tion to the Bank was nonetheless false. Moreover, the allegations in the indictment of misrepresentation may be treated as surplusage. “A scheme or artifice to defraud” coupled with the requisite mailing, is enough to bring a case within the ban of the statute: without need for resort to misrepresentations such a scheme was alleged and proved here. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; Gregory v. Uniled States, 5 Cir., 253 F.2d 104; Abbott v. United States, 5 Cir., 239 F.2d 810; Kreuter v. United States, 5 Cir., 218 F.2d 532; Henderson v. United States, supra.
We find even less substance to the defendant’s assertion that there was insufficient evidence to support the convictions on the charges that the defendant aided and abetted a bank officer in misapplying bank funds in violation of 18 U.S.C.A. § 656. It is true, of course, that to convict the defendant of aiding and abetting the bank officer it was necessary to prove all the elements of a federal offense by the bank officer.
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HINCKS, Circuit Judge.
The defendant was convicted upon an indictment containing four counts involving use of the mails to defraud, in violation of 18 U.S.C.A. § 1341, and four counts for aiding and abetting a bank officer in misapplying bank funds in violation of 18 U.S.C.A. §§ 656 and 2. He was given an aggregate sentence of ten years, five years on the first mail fraud count with concurrent sentences upon the other mail fraud counts; and five years on each of the misapplication counts, the sentences on the misapplication counts running concurrently with each other but consecutively to the mail fraud sentences. From the judgments of conviction, he appeals.
The mail fraud counts alleged, as a part of a scheme to defraud, that the defendant on October 30, 1956 opened a personal checking account under the name of “Edward DeGone” in the Liberty Bank of Buffalo, Niagara Falls Office (hereinafter called the Niagara Bank) and on November 30, 1956 opened a special checking account in his wife’s name at the Manufacturers and Traders Trust Company, A. M. & A. Branch (hereinafter called the Buffalo Bank); and that thereafter between March 15, 1957 and May 13, 1957 he cashed or deposited at the Buffalo Bank checks drawn on the said Niagara account knowing at the time that there were insufficient funds in the Niagara account to pay said checks and that he was without funds to pay said checks when the same would be presented for payment.1 These counts further alleged that by depositing in the Niagara account a sufficient portion of the proceeds thus obtained to cover similar checks previously cashed or deposited by the Buffalo Bank, the defendant “did represent to the [Buffalo Bank] that there were sufficient funds in the [Ni-[704]*704agaraj account to meet and pay” the checks previously drawn; that such representations were false and fraudulent, the Niagara account at all times being insufficient to meet all the checks previously cashed by the Buffalo Bank, and were intended to defraud the Bank to the defendant’s profit. Each count alleged a separate mailing. Each of these counts, we hold, sufficiently charged a check “kiting” scheme in violation of 18 U.S.C.A. § 1341. Federman v. United States, 7 Cir., 36 F.2d 441, certiorari denied 281 U.S. 729, 50 S.Ct. 246, 74 L.Ed. 1146; Henderson v. United States, 6 Cir., 202 F.2d 400; Deschenes v. United States, 10 Cir., 224 F.2d 688; United States v. Feldman, 2 Cir., 136 F.2d 394; United States v. Lowe, supra.
The defendant’s contention that there was insufficient evidence to sustain the verdicts on the mail fraud counts, is without merit. There was evidence to show that when the defendant opened his account at the Buffalo Bank on November 30, 1956, through Rick, the manager of the Bank, he was personally indebted to Rick in the amount of $9,500; that shortly thereafter, in December 1956, Rick, whose authority to make unsecured loans was limited to $2,500, cashed checks drawn by him on the Niagara Bank which were returned for insufficient funds. The aggregate amount of these checks in excess of balances in the defendant’s Buffalo account when the checks were returned, was about $11,-000. Rick then demanded of the defendant that he make the checks good, saying: “I can’t continue to hold them indefinitely.” The defendant promised to make the checks good but some two months later the Buffalo Bank held uncollected checks of the defendant to an even greater amount. Thereafter Rick advanced an aggregate of $13,000 of his ■personal funds to cover the defendant's uncollected checks: as he himself testified, “As checks came in and they weren’t provided for I covered them myself with my own personal funds.” For some, at least, of the funds so advanced Rick took notes from the defendant (payable to Rick personally) which were never paid. Against this background must be evaluated the subsequent transactions occurring between March 15 and May 13,1957, as set forth in the mail fraud counts. As shown by undisputed evidence in abundance, the defendant repeatedly obtained from the Buffalo Bank, through Rick on Niagara checks known by Rick to be worthless, cash which he deposited in the Niagara account to cover earlier Niagara checks, for which the Buffalo Bank had given cash or credits and which Rick, in connivance with the defendant, had caused the Bank to hold as “cash items.” By this scheme, new checks, also worthless, were substituted for older ones and deposits in the Niagara account of the proceeds of the new cheeks made it possible for the Buffalo Bank to collect the older checks in the usual course with a semblance of regularity. The effect was to conceal the earlier fraud and thus to assist the defendant again to pass off his worthless checks in ever larger amounts on the Buffalo Bank.2 When at last through the illness of the bank’s manager the fraud came to light the Buffalo Bank was left with worthless uncollected checks of the defendant in an aggregate amount of over $60,000.
In this connection, the defendant stresses the alleged absence of evidence to prove that, as charged in these counts, he made false representations to the Buffalo Bank as to the state of his Niagara account. But this criticism is untenable for several reasons. The mere presentation of the Niagara checks to the Buffalo Bank for cash or credit was an implied representation to the Buffalo Bank that there were sufficient funds in the Niagara account to cover them. United States v. Lowe, supra. Although one of the Bank officers knew that the representation was false, the representa[705]*705tion to the Bank was nonetheless false. Moreover, the allegations in the indictment of misrepresentation may be treated as surplusage. “A scheme or artifice to defraud” coupled with the requisite mailing, is enough to bring a case within the ban of the statute: without need for resort to misrepresentations such a scheme was alleged and proved here. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; Gregory v. Uniled States, 5 Cir., 253 F.2d 104; Abbott v. United States, 5 Cir., 239 F.2d 810; Kreuter v. United States, 5 Cir., 218 F.2d 532; Henderson v. United States, supra.
We find even less substance to the defendant’s assertion that there was insufficient evidence to support the convictions on the charges that the defendant aided and abetted a bank officer in misapplying bank funds in violation of 18 U.S.C.A. § 656. It is true, of course, that to convict the defendant of aiding and abetting the bank officer it was necessary to prove all the elements of a federal offense by the bank officer. Here Rick, the bank officer, himself testified that he carried as cash cheeks of the defendant long after they had been returned uncollected from the Niagara Bank on which they had been drawn and thereafter, while such checks were still unpaid repeatedly cashed further checks drawn on the defendant’s Niagara account; that he requested the defendant to replace “old” unpaid checks with “new” ones; and that to conceal such transactions he made erasures and alterations on the bank records “in case we have an audit” and “to falsify the record.” 3 The evidence of deliberate misapplication by the bank officer as well as participation by the defendant, with criminal intent on the part of both, was ample.
[706]*706The defendant predicates error on the judge’s refusal to grant his requests 13, 39 and 40 which sought instructions that the mail fraud counts and the misapplication counts were so basically inconsistent that convictions on one group precluded convictions on the other group. But this contention rests only on the assumption that the defendant’s scheme to obtain cash from the Buffalo Bank in return for worthless checks drawn on the Niagara Bank was not a scheme to defraud the Buffalo Bank if a Buffalo officer knowingly cooperated with the defendant in the execution of the scheme. In the context of this case, at least, the assumption is without any foundation in law. Since under the defendant’s own hypothesis the Bank’s officer was colluding with the defendant’s fraud, the Bank was not chargeable with the officer’s knowledge that the defendant’s checks were worthless. Mutual Life Ins. Co. of New York v. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202; American National Bank of Nashville v. Miller, 229 U.S. 517, 521, 33 S.Ct. 883, 57 L.Ed. 1310; In re United States Hair Co., 2 Cir., 239 F. 703; Justheim Petroleum Co. v. Hammond, 10 Cir., 227 F.2d 629, 633; 3 C.J.S. Agency § 270. We conclude that on the allega[707]*707tions and proofs here there was no inconsistency between the mail fraud and the misapplication counts.
Several claims of error stem from the judge’s charge. This contained one passage in which the judge said:
“There has been an expression used from time to time that it is the burden of the Government to prove every element of the crime alleged beyond every reasonable doubt. That is not the law. It is proof beyond a reasonable doubt and not necessarily to a mathematical certainty. There is no obligation whatsoever upon the defendant to prove his innocence. The presumption of his innocence remains throughout this case unless and until you reach a verdict wherein you find the defendant guilty of the elements of the crime of any or some of the above counts beyond a reasonable doubt.”
The defendant would have us lay special emphasis upon the first two sentences of this excerpt. He argues that the jury was confused by the statement, “That is not the law.” But it is well settled that the charge must be considered as a whole and thus tested we think it plain that the judge meant to say only that the law does not require proof beyond every doubt. That such was the purport of his instruction which was conveyed to the jury is shown by the last three sentences of the above-quoted excerpt. Moreover, elsewhere in the charge the jury had been repeatedly instructed that guilt must be established beyond a reasonable doubt, and so as to each count. Indeed, the jury was even told that to convict they “must be satisfied beyond a reasonable doubt * * * as to each element of the first four counts * * In this, the instructions as to reasonable doubt perhaps went further than is required to protect the defendant. Cf. United States v. Pape, 2 Cir., 144 F.2d 778, certiorari denied 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602; United States v. Spagnuolo, 2 Cir., 168 F.2d 768, certio-rari denied 335 U.S. 824, 69 S.Ct. 48, 93 L.Ed. 378. We conclude that the instructions as to the quantum of proof were free from prejudicial error.
The defendant also complains of the trial judge’s refusal to give his requested charge 42.4 In this we find no error. For there was no evidence upon which a jury could reasonably find that the defendant, who without contradiction obtained $60,000 of bank funds on his own worthless checks, was without knowledge of this misapplication of funds or that he in good faith believed that the moneys which he received as charged in the misapplication counts upon presentation of his own worthless checks were given him as an authorized bank loan. There was, therefore, no basis in the record for the requested instruction and on that account its refusal was not erroneous. United States v. Achilli, 7 Cir., 234 F.2d 797, 808, certiorari denied 352 U.S. 916, 77 S.Ct. 214, 1 L.Ed.2d 122, vacated 352 U.S. 1023, 77 S.Ct. 588, 1 L.Ed.2d 595, affirmed 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918, rehearing denied 354 U.S. 943, 77 S.Ct. 1391, 1 L.Ed.2d 1540. Moreover, the subject matter of Request 42 was adequately covered, we think, in other passages from the charge, some of which we set forth in the margin.5
[708]*708Especially in view of the quoted excerpts, other criticisms of the charge and exceptions to refusals are wholly without substance. The evidence of guilt was overwhelming. Neither in the charge nor elsewhere in the trial record do we find just cause to believe that the trial was lacking in fairness.
Affirmed.