UNITED STAT:ES V. MEANS.
(CirclIit Court, S. D.OMo, W. D. December 24, 1889.)
NATIONAL BANKS-FALSE ENTRIES TO DECEIVE OFllICERS-DIRECTORS.
Directprl\ of !l national.bank are "ofllC(lrs," within the meaning of Rev. St. U .. S. § 52OQ; which makes it a misdemeanor for bank oftlcers to make false entries in any book, report, or statement of the bank, with intent to deceive any of its officers.
'.' . '
Under said statute, intention to deceive anyone director or oftlcer is as criminal as the intention to deceive all of them. . . . , ' B.BAlIE-OFFlCERS A8 AccoMPUCBl!; , A conviction cannot be had under said statute where it appears that the oftlcera alleged to have been. deceived were accomplicell in the speoulation, to hide which the false entries were made.' ,
4. 8.AlE-I'RESUJ\IPTION Oll' INTENT-REBUTTAL. ·
If suoh false entries had a natural tendellOY to deceive the bankoftlcers, the facit that defendants deny baving bad alQ" such actual intent cannot rebut the presumptionoo; intent arisinjt from the nature the entries themselves, ,
5. BUE. .' , " . . , In such Case the fact that· the 'oftlcets in qnestion were not· actually deceived IS , 'Dot ,COnclusive proof of the absence of intent to deceive. 6. CmM;llIfAL. L.lW-EVIDENCE Oll' GoOD . · Proof of good character is. no defense -against crime actually committed, but is a ciroumstance in favor of the defendant, 'in eases where there is doubt as to commission of the crime. 7. SAHE-l1.E,lSONABLE DOUBT.' . ' Reasdtlable doubt is an hoIi8st.misgiviilg, generated by the insuftloienoy of the proof. . · ,
At Law. Charge to thejury. Indictment of William ¥eans and John R. De Camp for a violation of Rev. St. U. S. §5209, whklh provides that" every presideQ.t, director, cashier, teller,clerk, or agent of any association * * * who makes any false entry in any bodk,report, or statement of the association, with intent, in either case, to injure or defravd the association, * * * o,r to deceive any officer of the association, or' any agent appointed to examine the affairs of any such association, * * * shall be deemed guilty,ofa misdemeanor, and shall be imprisoned not less than five years, nor more than ten." John W. Herron and He:nry Hoop(fl', for plaintiff. Char'le8 W. Bak(fl' and Samuel F. Hunt, for defendant Means. Jack80n ·A. Jordan and Isaac. oM. Jordan, .for defendant De Camp.
HAMMOND, J., (charging jury.) Obviously, this trial has been 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 the transactions involved which is beyond all· question. Naturally, this would be so; for, without such a reputation, one would not be&llowedto 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 Wis that·tha,class of.offenses denouneed by the banking act of congress always
concerns men of the highest standing, for none others cnn become bankers, and employes of banks. This accounts, also, for the very severe penalties attachei\ by congress to a violation of those laws, rules, and regulations made to protect the people of the United States in their use of that national banking system which they have established by law, ll:nd which is so useful to them. Congress departs from its u§ual custom 9,rhninal legislation, and does not permit the court to determine the minimum punishment, but for itself ,declares that, if men of the high chara9ter employed inthe national banks shall violate the laws made to protect the system from wrong-doing, by those engaged in the trust imposed, by it, they deserve, and shall receive, not less than five years' Copgi'ess fellred courts might yield to such influences as were improper, and lightly punish reputable men for doing the fOrbiqden acts by which they woald desert the important trusts which QOllgvess was determined to protect by these penalties. Therefore, to neither court nor jury has been leff, the power to condone these offenses nominal ()l' slight plUlishment, as in other classes of our criminal laws. The act itself is a protest against allowing our sympathy f<;>r pride to control our judgment in such cases. Wherefore, the 'OOUIlt: must caution y01.1that, while we do not come "with the war-Whoop and scalping-knife of savages," to use the language of counsel, nor withfor th.e misfortunesltJ;l.d. Dlistakes of men, nor, indeed, without a participation in that profound sympathy which we observe pervades this city and shelters the defendants,-one of them, at least, to an extraordinary degree, because of his eminence in all the relations orUfe, ,and his connection with the good people of this city in high plaoes of public and private do come to do our duty, and, in obedience to the oaths we, have taken, "to administer justice without respect to persons, and do equal right to the poor and to the rich;" and "a true verdict render, and a true deliverance make, according to the law and the testimony.", This is the measure of our duty, and this alone. If these defendants, are guilty, you must "a true verdict rellder,'?and say so; if 'not guilty, likewise "a tme verdict render, and a true deliverance make," by saying so. That you will do this bravely and honestly, and with· im partiality1 this· court does not in the least doubt. After all that hail been said in the argument, and so well said on both sides, it is not necessary to go over this whole case, in its multitude of details, and to comment upon the testimony in all its bearings; and I shall not attemptthat treatment. ·:.The object of the statute, s.o often read in your hearing, about making false entries, or causing them to be JOade, is to secure at all times a ful exhibit of .the condition of the ban:k. The requirement of a report to the comptroller of the currency is intended tQ secure that supervision of the.bank which the government assumes in the jnterest of the system, ,lUlQ,fi)f the people who resort to it on the invitation of the governrnent, it estabHshes the system,- and promises to protect it by wise lation. The object of mll.king publioatiQn in the newspapers is to inform
UNITED STATES V. MEANS.
the public of the exact and true condition of the bank. To falsely represent the facts, and to make a false publication of them, is, undoubtedly, a crime, under this act, no matter if it be done to save the bank. It is the very thing the banker is forbidden to do. That the public shall be truly informed, no matter how disastrous the truth may be to the bank itself, is the command of congress, made in the interest of the public. It is this publicity more than anything else which shall secure fidelity in the administration of the bank. It is the ruin that will come to the bank if mismanagement be published which is relied upon to secure the public, and those interested in the bank, against mismanal};ement; and therefore the fear of ruin to the bank is no excuse for falsely publishing its condition to the public, and cannot shield the banker from the crime of a false publication. , Weare 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 ihat 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 Mahie 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 vic. tim of the injury, as no given (Cagent appoirJted to examine the affair's of the asso:liation" need be named as the victim of that particular deceit: Referring, also, to a former clause ohhis act, we are inclined to -think that, if is established by this proof, it is that the directonfwho entered into the syndicate to purchase the stock of the bank by ping the bank itself of the' mopey necessary to pay for it, under the cii" cumstances shown here of taking the money under the guise of loans to themselves without any security, or upon inadequate security, were guilty of abstraction or willful misapplication of the fnnds of the bank. It was this uesertion of their trust that brought upon them the cessity of making false reports and entries, no doubt; but it furnishes, certainly, no excuse for doing that thing, and makes the doing of it ribrie the less aviolation of this law. But, strange to say, neither fendants, nor those who were jointly concerned in these violations of the statute along with them, have been charged by this indictment with any Qfthe 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, arid 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 maHer of dispute, and that dispute you must settle here and now. It is about only dispute in the case. All others are important only by relation tothis, and the beari,ng they will have upon its solution by you. We must therefore caution you that you'are not trying these defendants, tipon the facts inprodf before you, -for auy wrong-doing as to 'the funds
of the bank, nor any: as to the publip, by deceiving it by the publicain the newspapen;l, nor any, to the" or his agents, however to your minds, the, may establish those offenses. But you are to try only the quelltion whether the false report or the false entries in the books which have been named in the indictment, and so often repeated to you in were, made with intent to deceive any officer of the bank; ,The line of demarkation here must be clearly drawn by you; and you ,must nQta1low your ver.dict to convict the defendante of. any other, offense than that charged, however clearly you lllaysee those other offenses, in the facts of this case. With this necesil8J'y. caution, we will now Qonsider the case in its relation to the disputed iJ,ltentas to the officers ,qfthe bank. In the orderly consideration of the subject, your first inquiry would }.>e, Who are the officers of the bank to by this act of congress? By; Jthe rule of association of words in the statute, first clearly pointed out by MI'. Hooper, there cannot be much doubt that congress conceived that a ,teller is one of the, ,officers of the bank; and this is, undoubtedly, thfl genE/ra1 understanding out/lideof banks, as shown by the definition of the:ly9,,-d by lexicographers, laymen,alld lawyers, and by the pooks on baJilking found in ourlaw We think that the decisions of thesqpreJ;lle court of th,e ,United 814tes also indicates that the word has been so u,nderstood by tribuniil. Y'etcongress was not organizing a, bank by this statute, nor was it decllloring who should 01' should not be the officers of the bank authorized by this banking act. On the contrary, 1)y another sootjonit4e power given to the board of directors to appoint "other officers," after having. nam,ed the president, dent', and cashier as three of them ,fixed in the organization, and also power to define their duties, etc. We think, therefore, that it depends on the circumstanc.es 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 of the Metropolitan Natiomil Bank no e;Vidence that the. teller was or treated as an officer jn that b",nk,but, on the contrary, thai he was regarded as a clerk. and 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 considin 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 <leceive 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 depend on the very especial circu:mstances of each case, But, on the circumstances here, it is plain that Roth, the paying teller, bad no duties, or business relations connected with these f.lse entries that would a deception as to him either desirable or J;lecessarYi and ,this circulnstance, taken in connection with all else that in the case, negatives th!3 idea there. could have been an. iqtention specifically to deceive him, or generally to paying And" since we would not support a verdict based on the facts in tbis case in
their relation to the paying teller, we may at once advise you to discard him from your consideration as one of the officers. The facts might be submitted to you, so far as they concern the receiving teller, Reigel. He did have a necessary connection, in his capacityas 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 tothebank, under this statute, depends on the exigencies of the situation, and the functionary's particular duty in that business which isin 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 ofstrict construction for penal acts,ofwhich we 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 ing a false report to deceive the comptroller and tbe 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 confe8sed 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 yon. There is not the least doubt, as to Reigel, 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 we 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 are 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. Hayes, 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 dis· played in this proof, in plam violation of this act of congress. They are
the officers of the bank; and this statute against false entries protects them against deceit, and was intended to do so., Hence, if you believe from the evidence in this case, beyond a reasonable doubt, that the defend!1nts,in the execution of their confessed purpose tq deceive the comptroller and the public, found it necessary to deceive Roth, Duckworth, Gerke,Bonte, and Ryan, or any of them, and made the false entries with that intent, these defendants are guilty, and you should say !l0' Or, if you believe from the evidence, likewise beJ<:lnd a reasonable doubt, that, in the execution of their confessed purpose, they found it necessary to deceive. the cashier, Edwards, and made the false entries with that intent, then, also, are they guilty , and you should say so. Intention to deceive anyone director or officer is as criminal, under the act, as the intention to deceive any number or all of them. ,But if you believe the evidence that these men were engaged in a cause, were em barked in a more or less common enterprise of speCUlation, were involved in a more' orIess common peril, were impelled bya 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 make false entries of conformity upon the baoks,-we say, if you believe all this,.You should not convict these defendants. Even common criminals, in common enterprises, do pot find it essential to deceive each except when they come to divide the fruits of crime; and we are of the,opinion that offenders under the particular clause under which this indictment is drawn may so include all the officers of a bank, by combinatio,n 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 il! the condition, as shown by this proof, or whether the facts are as the govemmentinsists that these defendants had to deceive Edwards, ,Roth, and Duckworth" and the rest, iI). order to deceiye the comptroller and the Pllblic. The district attorney does not claim, pOl' is there any .proof, that Directors Ryan and BOJ;lte were involved in the confessed wrong-doing, either as. to the syndiYJite operations or as to the false entries; nor did the rely upon apy participation by them in the "enterprise," as they call it. The district attorney claims that they were deceived, necessarily, by the false l7eport and the false entries in the books. It is for you. to say if this be so beyond a reasonable doubt. Their puty of supervision was plain.. Their power to check the wrongdoing, when coming to their knowledge, was undoupted. Now, did the · defendants intend to deceive them in order to prevent the exercise of that power, .or to. procure their quiescence? .. 1,'00 stress on both sides oftheargument has been put upon a bare, intent to deceive some person for the mere p:urpose of deceit. , That is not what the statutemeans. It means a deception which has apurpose.,behindit;to accomplish, an end to gain, a design to carry out, or an aim to be attajned. That is. the legal definition of" intent," as applied to an1ntention. to deceive,ll.s well as any other. Hence, when thissubject, as toRyanand Bonte, for example, you may
determine whether the proof shows beyond a reasonable doubt that deceiving them was desirable, and an object to be attained. or whether it shows that they were inert. inattentive, and not actively watching affairs, because of illness, or for other cause, and, therefore, the defendants could not have intended to deceive them. Gerke was absent; and you may say how far that fact has any influence on the question of an intention to deceive him; and, as to all three, whether the conduct of the defendants in relation to them was of a kind to. show an intention to deceive them by the false entries or not, and this beyond a .reasonable doubt. It is to be determined by all the proof. Now, reasonable men are held to intend that which is the result of their conduct in the premises; and, if the false entry is calculated, under the circumstances of the case, to deceive, the defendants cannot say they had no such intention. They may even swear to its absence; but, if the circumstances show that the natural and probable consequences were the deceit which has been described to you, their assertion cannot prevail over this fact, in making up your verdict. It depends wholly on the peculiarities of the case, the chal'acter of the transaction, and the nature of the intent described by the statute, as to how you shall apply this rule. If congress had said that all false entries, willfully made, should be punished by imprisonment, as it might have said, and probably ought to have said, then the doing of the act or false entry would be in itself a crime; and the wrongful intent to violate the statute, to disobey the law, and bring about any natural and probable consequences, would be conclusively inferred by you as a fact, and no meritorious purpose could prevail against that inference.. But congress has not said that all false entries shall be forbidden, but only, as applicable here, that these made with intent to deceive the officers shall be forbidden; such deceit as we have described, with a purpose and design behind it of accomplishing that deceit, possibly for some other purpose or design ulterior to the other, which is immaterial, except as a circumstance of evidence in showing whether the forbidden and, criminal intent existed or not. There may be more than one intent in an act, and they may co-exist reasonably and fairly in the per-uliar facts of the giyen case. On the other hand, on the given facts. the confess.ed intent may be of a kind to wholly exclude the forbidden intent. 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.tlle necessity of deceiving them into making the oath and 'attesappear? Does the proof show this? It is for ypu to say, If :this as you find, would it not p'1tential c,ircumstance to
FEDERAL 'REPO!tTER, "01.' 42.
Jtbeql; and accomplished that intention? But if, on the other hand, the
,proof shows that they were willing and anxious, and under the same 'stress "as the others, to deceive the public, for any purpose, is it not equally as plain that the fa?t oltheir willingness and stress 'of necessity excludes :,;ny'intention to deceive, them, at)east? De Camp was a director; and the government claim, or can it he, too, attested the' falsehood. c1aiml thafthedefezidimt MealJ,s ,had a design to deceive him? If not, wby not? Was 'trrereany niore occasion to deceive Roth or Duckworth than DeCamp? It is for you to say, on the facts, how this may be. The defeqdants say these two' and Edwards were as deep in the mire, in this, transaction, as they, which incUlpation these witnesses deny; and the proofis beforeyoh, not to convict them, for they are not indicted, but to determine whether the defendants are reasonably and fairly to be held to have intended to have deceived them by the false entries. , 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, bU,t not a .conclusive .circumstance; for one, may be deceived when there was in fact no lritention to <;1eceive him.' On the other hand, again, as to ail these officers, the ciidumstance, it y6u find it s6, that one as to whom the defendants intended deceit was not in truth deceived,is not conclusive againstthe intention to deceive; for one shall not escape because the design to be accomplished by an intended deceit failed ofits purpose. Thus it is, gentlemen of the jury. You go, over th'eproof, in all its details,-all the proot,-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 etrect 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 His 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 owh'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 ill 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
show that the defendants intended, aha must have intended, to deceive
" But we have constantly said that you cannot convict unless you are beyond a reasonable doubt. What does this mean,-:' satisfied "reasonable doubt?" A reasonable doubt is an honest misgiving, gen-
UNITED STATES tI. MEANS.
ernted by the insufficiency of the proof, which your reason sanctions as a substantial doubt. If, after you have weighed all the evidence, on your oaths to try the question of guilt according to the law and the testimony, and looking to all the proof, and only to the proof, you impartially and honestly entertain the belief that these defendants may be innocent of the offense charged against them, they are entitled to the benefit of that doubt, and should be acquitted.' A doubt suggested merely by the of counsel, or of yourown, or one born only of a merto permit the defendants to escape the pemilty of the law, or one not connected with the testimony, is not a reasonable doubt. It must be created by an inadequacy of proof, so great that you are not reaIt must grow out of the sonably satisfied of the guilt of the proo.f j;tS being insufficient to convince you, or as being of doubtful quality, or oo'th; and it may arise out of a total or partial want of proof, out of the .bad character of witnesses, whose credibility you reasonably doubt, or out of.,f;tny other infirmity in regard to it, whether the witnesses, or any of them, be of doubtful character or not. Cross-examination and adverse testimony is intended to develop any such infirmity; and you look to all the proof on both sides to determine the question of guilt or innocence, and must, upon the whole, have no such doubt as has been described, or you cannot convict. , . 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 W!l.S deceived was not known so as to be
THE BURCHARD. 1
, DAVIS et al. v. THE 'BURCHARD.
(Di8trict Oourt, S. D. AZabama. June 18, 1890.)
So long as the ·"elation pt t<>a German vessel is not terminated, the courts 'of the United States eannot entertain a libel for and construe the contract of Ahipment, but under the .treaty of December 11, 1871, with the German Empire, mUlJtremit the whole to the German consul for adjudication.
II} Qn libel for seamen's wages. . ThliJ'Burchard is a. German vesSel, and the crew were shipped at Bull.nos Ayres before the German consul. Upon the filing of the libel at Mobile, the. German consul . entered a protest, claiming jurisdiction of the matter. under the treaty of December 11, 1871, now in force between the United States and Germariy. Public Treaties, etc., 258. W, D.McKinstry, for libelants. Thea. H.Smith. for.. TOUf'llUN, J. Under the allegations of the libel in this case, it apIlear.e"d that libelants were AmE;lrican seamen, and had been discharged by the ;master 8,t this port; and that, therefore, their relations to the vessel as a' part of its crew had been severed. If this was true, I was inclined to the opinion that the court had jurisdiction to bear and adjudicate the question of wages. The testimony, however, fails to show that they were discharged by the master. On the contrary, it shows that libelants claimed their discharge at this port on the ground that, by the terms of their contract, they were entitled to their discharge. The master denied their claim, whereupon a dispute arose between them as to what was the contract. The master told them to go ashore if they wished, and go to see the consul. For this court 00 undertake to settle the dispute between the parties, and to determine the question of libelants' right to. their discharge under the contract, and hence of their right to wal/;es, would require a consideration and construction of the contract by the court, which, under the treaty, the court has not the jurisdiction to do. And while I may be of opinion, as I construe the shipping articles produced, that under them libelants are entitled to be discharged at this port, still the court has, as I have said, no jurisdiction so to adjudicate, but must remit the matter to the consul. The Elwine Kreplin, 9 Blatchf. 439. It is therefore ordered that the libel be dismissed.
Reported by Peter J. Hamilton, Esq., of the Mobile bar.