When a person is notified that his case is to be brought before
a grand jury, he should proceed at once to take exception to its
competency, and if he has had no opportunity of objecting before
bill found, then he may raise the objection by motion to quash or
by plea in abatement; but in all cases, he must take the first
opportunity in his power to make the objection. In this case, the
venire issued November 18; a second venire December 2; the court
opened December 3; the indictment was returned December 12; the
plea in abatement was filed December 17.
Held that it was
too late.
An exception was saved as to the taking of notes by a juryman,
but, as the record does not show that any notes were taken, there
is nothing for it to rest on.
On the trial of the president of a national bank indicted for
misapplication of its funds, its cashier testified in his favor as
to his financial condition and standing. He was then asked "do you
know what his commercial rating was at that time?" The question,
being objected to was ruled out.
Held that the ruling was
correct.
The same witness on cross-examination was asked why he had
resigned his position as cashier at a date named, which was after
the acts complained
Page 165 U. S. 37
of and before the indictment. The question being objected to was
admitted.
Held that there was no error in this.
The question at issue being what was the defendant's knowledge
and opinion of his own financial condition, evidence as to the
opinion of others on that point was properly excluded.
The opinions of the financial world as to the rating or standing
of the defendant when the acts complained of were committed were
not admissible in evidence.
In criminal cases, the burden of establishing guilt rests on the
prosecution from the beginning to the end of the trial; but when a
prima facie case has been made out, the necessity of
adducing evidence then devolves on the accused.
The instruction of the trial court to the jury in this case
that
"if you find that the defendant placed that which was worthless
or of little value among the assets of the bank at a greatly
exaggerated value and had that exaggerated value placed to his own
personal account upon the books of the bank, from such finding of
fact you must necessarily infer that the intent with which he did
that act was to injure or defraud the bank, but this inference or
presumption is not necessarily conclusive"
was not error.
The trial court is not bound to accept language which counsel
employ in framing instructions, nor to repeat instructions already
given in different language.
The court instructed the jury that
"the crime of making false entries by an officer of a national
bank with the intent to defraud, defined in the Revised Statutes of
the United States, § 5209, includes any entry on the books of the
bank which is intentionally made to represent what is not true or
does not exist, with the intent either to deceive its officers or
to defraud the association. The crime may be committed personally
or by direction. Therefore the entry of a slip upon the books of
the bank, if the matter contained in that deposit slip is not true,
is a false entry. If the statement made upon the deposit slips is
false, the entry of it in the bank and the books of the bank is
false,"
and refused to give the following, asked for by defendant:
"The making of a false entry is a concrete offense which is not
committed where the transaction entered actually took place and is
entered exactly as it occurred. . . . The truthful entry of a
transaction charged as fraudulent does not constitute a false entry
within the meaning of the statute."
Held that there was no error.
The evidence or want of evidence justified the refusals to give
the instructions requested by defendant's counsel and referred to
in No. 10 in the opinion of this Court, and in regard to those
referred to in No. 11,the true view of this branch of the case was
fairly covered by the charge of the trial court.
Plaintiff in error was indicted in the United States Circuit
Court for the Southern District of Florida for violation of § 5209
of the Revised Statutes, which is as follows:
Page 165 U. S. 38
"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 any 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, and shall
be imprisoned not less than five years nor more than ten."
The indictment contained eight counts, charging that Agnew,
being president of the First National Bank of Ocala, Florida,
unlawfully misapplied the moneys, funds, and credits of the bank
with intent to convert them to his own use and to injure and
defraud the bank by causing a check for $3,400 belonging to the
bank to be entered as a credit on his personal account with the
bank, his account at the time being largely overdrawn, and he being
largely indebted to it; that he caused a false entry of $3,400 to
be made to his credit on the books of the bank by means of a false
deposit slip, which he caused to be made in his own favor, with the
intent on his part to injure and defraud the association; that he
embezzled and converted to his own use, with the intent to injure
and defraud the association, moneys and assets thereof to the
amount of $2,500; that he unlawfully misapplied the moneys, funds,
and credits of the association, with intent to convert them to his
own use, and with intent to injure and defraud the association in
this: that he purchased for the bank certain bonds, of the par
value of $5,000, of the Globe Phosphate Mining & Manufacturing
Company, paying for them the
Page 165 U. S. 39
sum of $2,500, and, without the knowledge and consent of the
banking association, placed the bonds among its assets and caused
them to be credited to his personal account on the books of the
bank at the sum of $5,000, knowing the bonds to be entirely
worthless, and of no commercial value, and thus willfully
misapplied the moneys, funds, and credits of the bank to the amount
of $2,500, and converted the same to his own use; that he
feloniously embezzled and converted to his own use $7,500 of the
moneys, funds, and credits of the bank, with intent to injure and
defraud it; that he unlawfully and willfully misapplied the moneys,
funds, and credits of the bank, with intent to convert the same to
his own use and to injure and defraud the bank, by purchasing,
acting ostensibly for it, certain bonds of the Globe Phosphate
Mining & Manufacturing Company of the par value of $10,000, for
$2,500, and, without the knowledge and consent of the bank, placing
said bonds among the assets of the bank as a part thereof, and
causing the sum of $10,000 to be credited to his own personal
account on the books of the bank, he then and there well knowing
that the bonds were worthless, and of no commercial value, and thus
willfully misapplying and converting to his own use $7,500 of the
moneys, funds, and credits of the association; that he embezzled
and converted to his own use, with intent to injure and defraud the
association, $7,500 of the bank's moneys and assets; that he
unlawfully and willfully misapplied the moneys, funds, and credits
of the bank, with intent to convert the same to his own use, and to
injure and defraud the bank, by purchasing $10,000 of the Globe
Phosphate Mining & Manufacturing Company's bonds for $2,500,
placing them, without the knowledge and consent of the association,
among the assets of the association at $10,000, and causing the sum
of $10,000 to be placed to his personal credit on the books of the
association, knowing said bonds to be worthless, and of no
commercial value, thus willfully misapplying and converting to his
own use $7,500 of the moneys, funds, and credits of the bank with
the aforesaid intent.
The indictment was returned December 12, and plaintiff in
Page 165 U. S. 40
error was arraigned December 17, 1895, and filed a plea in
abatement as follows:
"And the said Enoch W. Agnew, in his own proper person, comes
into court here, and, having heard the said indictment read, says
that the grand jury which found said indictment was an illegal
grand jury, in this: that after sixteen had failed to attend upon
the regular venire, the court ordered that a special venire issue
for ten grand jurors, to be drawn according to law. Said grand
jurors so ordered by the court were directed to be taken from the
County of Duval. That the clerk and marshal, in drawing said
venire, whenever a name was legally drawn from the box, if said
party so drawn was not from the County of Duval, laid aside said
name, and continued drawing until ten names from the County of
Duval were obtained, and which illegal drawing of said venire
tended to the prejudice of this defendant, and the court, on
excusing three returned on the second venire, ordered that four
names be drawn for jurors to complete the panel. That said jurors
were ordered to be drawn from the box, and the clerk and marshal
drawing the same were ordered to take those that were from Duval
County as they came from the box, and the said clerk and marshal,
as the names were drawn, rejected and did not place on the venire
said names so drawn, but rejected and laid them aside, until names
came out of the box of parties resident of Duval County, which
drawing was illegal and tended to the prejudice of the defendant.
And, upon said venire's being returned, showing A. K. Leon and
Julius Kaufman summoned, and Alex. Sabel and Frank Robinson not
found, the court ordered that four names be drawn from the box and
in said order directed that said four names should be taken from
the County of Duval. That the said United States marshal and clerk,
in obedience to said order, drew from the box more than four names,
and where the names were of persons not resident of Duval County,
rejected and laid them aside, and continued drawing until Dennis A.
Andreu, Benjamin F. Manier, John L. Marvin, and Samuel Morris were
drawn. And so John L. Marvin, John E. Olney, Z. L. Anderson,
Charles E. Bell, W. G. Candlish, A. R. Paxon,
Page 165 U. S. 41
and Dennis A. Andreu were drawn illegally by said marshal and
clerk, and not in accordance with the statute of the United States
in such case made and provided, which requires that where less than
sixteen attend, the court shall order the marshal to summon from
the body of the district, and not from the bystanders, a sufficient
number of persons to complete the grand jury. And so the names of
many persons who were duly drawn from the jury box were not placed
upon the venire, but were, in the pursuance of the aforesaid
orders, after being drawn from the box, rejected and laid aside by
the clerk and marshal drawing the same, for the purpose of
completing the grand jury from the residents of the County of
Duval. And the defendant says that he was entitled to have the said
grand jury completed according to law, and the said grand jury so
impaneled and sworn as aforesaid was not drawn and impaneled in
accordance with the statutes of the United States providing for the
drawing and impaneling of grand juries, but was illegal. And this
defendant says that such drawing tended to his injury and
prejudice."
"Wherefore he prays judgment of the said indictment, and that
the same may be quashed."
To this plea the United States filed a demurrer, and, issue
being joined thereon, the court, after argument, held the plea
insufficient, to which plaintiff in error excepted and pleaded not
guilty. The cause was set for trial on January 3, on which day a
jury was impaneled, the trial proceeded with, and a verdict of
guilty returned January 7. Motions for new trial and in arrest of
judgment were submitted and denied, and sentence thereupon
pronounced, and the cause brought here on writ of error.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Page 165 U. S. 42
Nineteen errors were assigned, of which the third, fifth, ninth,
and fourteenth were abandoned, and the sixth and seventh, the
twelfth, sixteenth, and seventeenth, and the eleventh and fifteenth
were argued by counsel for plaintiff in error together. We will
examine these alleged errors in their order.
1. That the court erred in sustaining the demurrer to
defendant's plea in abatement.
Section 802 of the Revised Statutes is as follows:
"Jurors shall be returned from such parts of the district, from
time to time, as the court shall direct, so as to be most favorable
to an impartial trial and so as not to incur an unnecessary expense
or unduly to burden the citizens of any part of the district with
such services."
Under section 803, writs of
venire facias, when
directed by the court, were to issue from the clerk's office, and
be served and returned by the marshal in person or by his deputy
or, in case the marshal or his deputy were incapacitated, by some
fit person specially appointed by the court.
By section 804, when, from challenges or otherwise, there was
not a petit jury, it was provided that the marshal or his deputy
should, by order of the court, return jurymen from the bystanders
sufficient to complete the panel.
Section 808 reads thus:
"Every grand jury impaneled before any district or circuit court
shall consist of not less than sixteen nor more than twenty-three
persons. If of the persons summoned less than sixteen attend, they
shall be placed on the grand jury, and the court shall order the
marshal to summon, either immediately or for a day fixed, from the
body of the district, and not from the bystanders, a sufficient
number of persons to complete the grand jury. And whenever a
challenge to a grand juror is allowed and there are not in
attendance other jurors sufficient to complete the grand jury, the
court shall make a like order to the marshal to summon a sufficient
number of persons for that purpose."
By the Act of June 30, 1879, 21 Stat. 43, c. 52, it was provided
that all jurors, grand and petit,
"including those summoned during the session of the court, shall
be publicly drawn
Page 165 U. S. 43
from a box containing at the time of each drawing, the names of
not less than three hundred persons possessing the qualifications
prescribed in section 800 of the Revised Statutes, which names
shall have been placed therein by the clerk of such court and a
commissioner, to be appointed by the judge thereof. . . . The clerk
and said commissioner each to place one name in said box
alternately, without reference to party affiliations, until the
whole number required shall be placed therein. But nothing herein
contained shall be construed to prevent any judge from ordering the
names of jurors to be drawn from the boxes used by the state
authorities in selecting jurors in the highest courts of the
state."
The plea sets up, as ground for abatement of the indictment,
that after the original venire had been exhausted without obtaining
sixteen grand jurors, the court ordered a special venire to issue
for ten grand jurors to be drawn according to law,
"to be taken from the County of Duval; that the clerk and
marshal, in drawing said venire, whenever a name was legally drawn
from the box, if said party so drawn was not from the County of
Duval, laid aside said name, and continued drawing until ten names
from the County of Duval were obtained,"
and that, some of the ten returned on the second venire being
excused, other names were drawn in the same way, and a third venire
was issued, and still another, until the grand jury was completed
with grand jurors from Duval County. The original venire showed
that twenty-three persons were summoned from ten counties, not
including the County of Duval, one or more from each, and the plea
stated that when a deficiency appeared from the failure of some of
those summoned to attend, the court directed the deficiency to be
made up by obtaining jurors from Duval County in the manner pointed
out. There are certain orders of court, certified as part of the
record, which directed the drawing according to law from the
various counties exclusive of Duval County, and then from that
county. It will be perceived, then, that the jurors were all drawn
from the body of the district, and so distributed as not to incur
unnecessary expense or unduly burden the citizens of any part of
the district with jury service.
Page 165 U. S. 44
Section 802 of the Revised Statutes was brought forward from a
clause of section 29 of the Judiciary Act of September 24, 1789,
which was regarded by Mr. Justice Curtis as applicable to grand as
well as petit juries.
United States v. Stowell, 2 Curtis
153. In that view we are inclined to concur, but apart from this,
and without considering how far, if at all, the section may have
been modified by the Act of June 30, 1879, we think the plea was
properly adjudged insufficient.
Such a plea must be pleaded with strict exactness.
United
States v. Hammond, 2 Woods 197;
O'Connell v. Reg., 11
Cl. & Fin. 155;
Dolan v. People, 64 N.Y. 485;
Jenkins v. State, 35 Fla. 737;
Jenkins v. State,
35 Fla. 737;
McClary v. State, 75 Ind. 260; Whart.Cr.Pl. §
427; Bishop, New Cr.Proc. §§ 327, 745.
Dr. Wharton lays it down (Whart. Cr.Pl. §§344, 350) that
"material irregularities in selecting and impaneling the grand
jury, which do not relate to the competency of individual jurors,
may usually be objected to by challenge to the array, or by motion
to quash,"
or by plea in abatement; that the question of the mode in which
such objections are to be taken largely depends upon local
statutes, but that certain rules may be regarded as generally
applicable. One of these rules is that the defendant must take the
first opportunity in his power to make the objection. Where he is
notified that his case is to be brought before the grand jury, he
should proceed at once to take exception to its competency, for if
he lies by until a bill is found, the exception may be too late;
but where he has had no opportunity of objecting before bill found,
then he may take advantage of the objection by motion to quash or
by plea in abatement, the latter in all cases of contested fact
being the proper remedy.
United States v. Gale,
109 U. S. 65.
Another general rule is that for such irregularities as do not
prejudice the defendant, he has no cause of complaint, and can take
no exception.
United States v. Richardson, 28 F. 65;
United States v. Reed, 2 Blatchford 456;
United States
v. Tallman, 10 Blatchford 21;
State v. Mellor, 13
R.I. 666;
Cox v. People, 80 N.Y. 500;
People v.
Petrea, 92 N.Y. 128.
The original venire was issued November 18, the second
Page 165 U. S. 45
venire issued December 2, 1895. The court opened December 3,
1895, and the indictment was returned December 12th, yet defendant
did not file his plea in abatement until December 17th. The plea
does not allege want of knowledge of threatened prosecution on the
part of defendant, nor want of opportunity to present his objection
earlier, nor assign any ground why exception was not taken or
objection made before; and, moreover, the plea is fatally defective
in that, although it is stated that the drawing "tended to his
injury and prejudice," no grounds whatever are assigned for such a
conclusion, nor does the record exhibit any such.
2. That the court erred in allowing the jurors to take
notes.
It appears from the bill of exceptions that one of the jurymen
asked the court if he "could take notes, and jot down any items on
paper," and that the court responded: "Certainly, you have a right
to assist your memory in any way that is consistent with your
conscience." To which defendant excepted. The court subsequently
admonished the jury that this was simply for the personal
convenience of the juror; that he wished them to understand that
their memory and recollection of the testimony were to control in
arriving at a verdict, and that they should not be influenced in
the least by the juror's notes.
The exception saved was to the permission to take notes and not
to the use of them in the jury room. But the record does not show
that any notes were taken, and there is nothing for the exception
to rest on.
3. That the court erred in refusing to allow the witness
McIntyre to answer this question, propounded by defendant's
counsel: "Do you know what his [Agnew's] commercial rating was at
that time?"
McIntyre was cashier of the First National Bank of Ocala at the
time of the alleged criminal misapplication of its funds, and had
testified fully on behalf of plaintiff in error as to his financial
condition and standing when he was asked this question. We hold the
ruling of the court correct. The point of inquiry was Agnew's
actual financial condition, or what he knew, or must be held to
have known, or actually and with
Page 165 U. S. 46
reason believed, that it was, and his commercial rating was not
relevant.
4. That the court erred in allowing the witness McIntyre to be
asked, on cross-examination, why he resigned as cashier of the bank
in June, 1894, and in permitting him to answer the question.
The criminal acts charged in the indictment were alleged to have
been committed in January, February, and May, 1894. McIntyre was
cashier of the bank during that period, and his resignation of that
office was not accepted until June, 1894. The ground assigned for
the objection was that the testimony was immaterial, and the court
said: "That might be relevant, and might not. If he resigned
because he knew that Mr. Agnew's guaranty was not good for
anything, that might be relevant."
The record thus continues:
"Q. Didn't you attempt to resign as cashier of that bank
previous to the time when you did actually resign?"
"A. Yes, sir; I offered my resignation at the regular annual
meeting of the stockholders in January, 1894."
"Q. I will ask you why you tendered your resignation at that
time as cashier of that bank."
The defendant renewed his objection to this question as
immaterial, but the court overruled the objection, and allowed the
question to be answered, to which decision of the court the
defendant excepted.
"A. I cannot state any one particular or special reason for
tendering it. In 1893, during the time when all the banks were
having hard times, of course, the banks here had hard times, and I
just simply made up my mind then that, until things got back to
their normal condition again, I was going to get out of that
business right there."
"Q. So that your reason was just because you wanted to quit the
banking business."
"A. I would not say that that was the reason."
"Q. What we want is the reason."
"A. I would state that, of course, it is very apparent I was not
altogether satisfied with the business. That is my reason for
giving it up. I was not satisfied. I cannot state any
particular."
"Q. You were not satisfied with the business, or the manner in
which the business was conducted, which?"
Defendant excepted circuit court
Page 165 U. S. 47
to this question.
"By the Court: To pursue that line of questioning would be
bringing rather irrelevant and general matters, which might
possibly influence the jury and which might not be relevant in this
issue unless he can state some definite thing."
"Mr. Clark, District Attorney: I will ask a straight
question."
"Q. I will ask you if it is not true that you tendered your
resignation, and made up your mind to quit the service of the bank,
on account of the acts and doings of Mr. Agnew, president of the
bank, similar to this bond transaction?"
"The defendant objected to this question as immaterial and
leading, but the court overruled the objection, and allowed the
question to be answered, to which decision of the court the
defendant excepted."
"A. As I said, there was no one special reason that I could
mention that caused my resignation."
"By the Court: If you cannot state anything definite, the court
does not want any general information or implication."
We think there was no error committed in this regard. This
witness was the officer next in rank to the president. He had
testified on defendant's behalf, and his personal action was
relevant on cross-examination as testing his testimony in chief. If
his voluntary resignation had no connection with the conduct of his
superior officer, his answer could not be injurious. If it had,
then that fact tended to weaken any evidence he might have given in
extenuation of the action of that officer. Besides, these answers
of the witness were practically immaterial.
5. That the court erred in refusing to allow the witness Barnett
to testify as to whether he considered Agnew's guaranty of $20,000
Globe Phosphate bonds at the time he made it, good, and in striking
out the testimony of the witness, and in not allowing the witness
Stewart to testify as to the rating, by Dun's Commercial Agency, of
Agnew at the time he gave the guaranty of $20,000.
McIntyre had testified that he had made out two deposit tickets
in favor of Agnew, and at his request, one dated February 12 and
the other May 12, 1894, crediting him with depositing $10,000 in
bonds in each instance; that the bonds referred to were Globe
Phosphate bonds; that he had the
Page 165 U. S. 48
bonds in his possession when he made out the deposit slips; that
the bonds were for $10,000 each; that Mr. Agnew asked him to give
him credit for the bonds, $10,000 each time; that in each instance,
Mr. Agnew stated that
"he would be personally responsible to the bank that these bonds
would be all right; he would guaranty the bank both principal and
interest; that he would make a written guaranty at any time I would
write it out."
Witness further identified a guaranty, dated February 12, 1894,
as written by him, and signed by Agnew in his presence, which was
read in evidence.
The witness Barnett was president of the National Bank of
Jacksonville, Florida, and was called as a witness on behalf of
defendant. The question put to him was:
"Are you sufficiently acquainted with Mr. Agnew's standing, in
the spring of 1894, to testify as to whether or not you considered
his obligation, guaranty, or endorsement at that time good for
$20,000?"
"Mr. Clark: Wait a moment."
"A. Yes, sir; I considered him good."
The government asked that this answer be stricken out. The court
said:
"Any testimony that would show positively the financial
condition of Mr. Agnew at that time, not in the commercial world --
the opinion of what his guaranty would be taken for by others -- is
not a true test of what he knew himself. The opinion of others as
to his standing at that time I do not think should be introduced to
determine the value of that guaranty,"
and sustained the motion. The court was right in this ruling. On
the question of value to Agnew's knowledge, Barnett's opinion of
Agnew's responsibility was irrelevant.
The witness Stewart was the agent of R. G. Dun & Co., a
commercial agency, in charge at Jacksonville, Florida. Defendant
offered to show that Dun's Commercial Agency rated him at that time
at a certain amount of money. The court declined to admit the
evidence, and correctly ruled:
"The question in this case is what was his intent?, and he knew
himself what that guaranty was worth, and that guaranty was worth
just as much as he would be able to make it worth in a case of
emergency. The question here is not how much Mr. Agnew was worth,
but the question is how much
Page 165 U. S. 49
he knew himself to be worth at that time, and how good he knew
his guaranty was. I consider, in that case, that if he had good
grounds to believe that he was perfectly able to comply with that
guaranty in every way, and according to his own financial condition
at that time -- had no doubt in his own mind -- I will admit that
such positive evidence as that might be relevant to go to the jury
to show he had no intent to injure or defraud the bank, but what
the opinions of the financial world were in regard to his condition
is not the best evidence."
6. The tenth assignment alleged error in several distinct parts
of the charge of the court, but in argument, only one out of six
exceptions saved thereto was relied on, namely, to the
following:
The court advised the jury that, in determining defendant's
intent, they might consider testimony tending to show that
defendant, without notice to the board of directors and without
their knowledge or consent, had invested one-half the bank's
capital in the bonds in question, and then said:
"The rule of law in regard to intent is that intent to defraud
is to be inferred from willfully and knowingly doing that which is
illegal, and which, in its necessary consequences and results, must
injure another. The intent may be presumed from the doing of the
wrongful or fraudulent or illegal act, and in this case, if you
find that the defendant placed that which was worthless or of
little value among the assets of the bank at a greatly exaggerated
value, and had that exaggerated value placed to his own personal
account upon the books of the bank, from such finding of fact you
must necessarily infer that the intent with which he did that act
was to injure or defraud the bank; but this inference or
presumption is not necessarily conclusive. There may be other
evidence which may satisfy the jury that there was no such intent,
but such an inference or presumption throws the burden of proof
upon the defendant, and the evidence upon him in rebuttal to do
away with that presumption of guilty intent must be sufficiently
strong to satisfy you, beyond a reasonable doubt, that there was no
such guilty intent in such transaction."
Undoubtedly, in criminal cases, the burden of establishing
Page 165 U. S. 50
guilt rests on the prosecution from the beginning to the end of
the trial.
But, when a
prima facie case has been made out, as
conviction follows unless it be rebutted, the necessity of adducing
evidence then devolves on the accused.
The circuit court, in this part of the charge, was dealing with
the intent to injure and defraud the bank, and rightly instructed
the jury that if they found certain facts, such intent was
necessarily to be inferred therefrom.
This was in application of the presumption that a person intends
the natural and probable consequences of acts intentionally done,
and that an unlawful act implies an unlawful intent. 1 Greenl. Ev.
§ 18; 3 Greenl. Ev. §§ 13, 14; Jones on Ev. § 23; Bishop Cr.Proc.
§§ 1100, 1101, and cases cited.
The circuit court, however, told the jury that the presumption
of the intent to injure and defraud, if the facts were found as
stated, was not conclusive, but in substance that its strength was
such that it could only be overcome by evidence that created a
reasonable doubt of its correctness -- in other words, that as the
presumption put the intent beyond reasonable doubt, it must
prevail, unless evidence of at least equivalent weight were adduced
to the contrary.
The question of the particular intent was not treated as a
question of law, but as a question to be submitted to the jury,
and, conceding that the statement of the court that the evidence to
overcome the presumption must be sufficiently strong to satisfy the
jury "beyond a reasonable doubt" was open to objection for want of
accuracy, we are unable to perceive that this could have tended to
prejudice the defendant, when the charge is considered as a
whole.
For the jury were further advised that if they found the facts
in question, which were again rehearsed, then the necessary
inference was that the transaction was effected "with intent to
injure and defraud said bank, and such inference can only be
overcome by evidence satisfactory to you that there was no such
intent;" that "the question of the intent is to be determined by
the facts and circumstances, and the surroundings at the time of
the transaction;" that
"the intent of the
Page 165 U. S. 51
defendant at the time he committed the transaction is the
question for you to determine, and, in arriving at a conclusion on
that intent, you will carefully weigh all of the testimony in the
case;"
that the presumption of innocence remains with the defendant
until the jury are "satisfied of the guilt beyond a reasonable
doubt;" and that
"if you are satisfied, beyond a reasonable doubt, that the
transactions as charged were committed, and at the time he
committed those transactions he had an intent to defraud the bank,
your verdict will be one of guilty. Unless you are satisfied beyond
a reasonable doubt that he had such intent, your verdict will be
not guilty."
And again:
"The jury must be satisfied beyond a reasonable doubt as regards
the guilt of the accused before they can find a verdict of guilty.
By a 'reasonable doubt' is not meant a possible doubt, but such a
doubt, arising from the evidence, that leaves the minds of the jury
in such a state that they cannot say, after having reviewed all the
evidence, that they have an abiding conviction, to a moral
certainty, of the guilt of the accused."
7. That the court erred in giving to the jury the following
instruction:
"The defendant is presumed to be innocent of all the charges
against him until he is proven guilty by the evidence submitted to
you. This presumption remains with the defendant until such time in
the progress of the case that you are satisfied of the guilt beyond
a reasonable doubt,"
and in not giving the following instruction, asked by
defendant:
"Every man is presumed to be innocent until he is proved guilty,
and this legal presumption of innocence is to be regarded by the
jury in this case as matter of evidence to the benefit of which the
party is entitled. This presumption is to be treated by you as
evidence, giving rise to resulting proof, to the full extent of its
legal efficacy."
The court is not bound to accept the language which counsel
employ in framing instructions, nor is it bound to repeat
instructions already given in different language.
Ayers v.
Watson, 137 U. S. 584;
Grand Trunk Railway v. Ives, 144 U.
S. 408;
Coffin v. United States, 162
U. S. 672. The instruction given was quite correct, and
substantially covered
Page 165 U. S. 52
the instruction refused, and as to the latter the court might
well have declined to give it, on the ground of the tendency of its
closing sentence to mislead.
In
Coffin v. United States, 156 U.
S. 432,
156 U. S. 460,
this Court, in discussing the distinction between the presumption
of innocence and reasonable doubt, said:
"The fact that the presumption of innocence is recognized as a
presumption of law and is characterized by the civilians as a
presumptio juris, demonstrates that it is evidence in
favor of the accused. For in all systems of law, legal presumptions
are treated as evidence, giving rise to resulting proof, to the
full extent of their legal efficacy."
But in that case the charge of the court was thought not to have
given due effect to the presumption of innocence, which there was
no failure in this case to state, and the giving of the instruction
asked would have tended to obscure what had already been made
plain.
8. That the court erred in giving the following instruction on
behalf of the government:
"The crime of making false entries by an officer of a national
bank with the intent to defraud, defined in the Revised Statutes of
the United States, section 5209, includes any entry on the books of
the bank which is intentionally made to represent what is not true
or does not exist with the intent either to deceive its officers or
to defraud the association. The crime may be committed personally
or by direction."
The exception was confined to the foregoing, but the instruction
thus continued:
"Therefore the entry of a slip upon the books of the bank, if
the matter contained in that deposit slip is not true, is a false
entry. If the statement made upon the deposit slips is false, the
entry of it in the bank and the books of the bank is false."
And in refusing to give the following instructions asked by
defendant:
"The making of a false entry is a concrete offense, which is not
committed where the transaction entered actually took place and is
entered exactly as it occurred."
"The truthful entry of a transaction charged as fraudulent
Page 165 U. S. 53
does not constitute a false entry, within the meaning of the
statute."
The instruction as given was correct, and in accordance with the
rule indicated in
Coffin v. United States, 162
U. S. 684. This being so, no error was committed in
declining to give the others.
9. That the court erred in giving the following instruction:
"The law presumes that every man intends the legitimate
consequence of his own acts. Wrongful acts knowingly or
intentionally committed can neither be justified nor excused on the
ground of innocent intent. The color of the act determines the
complexion of the intent. The intent to injure or defraud is
presumed when the unlawful act, which results in loss or injury, is
proved to have been knowingly committed. It is a well settled rule,
which the law applies in both criminal and civil cases, that the
intent is presumed and inferred from the result of the action. If,
therefore, the funds, moneys, or credits of the First National Bank
of Ocala are shown to have been either embezzled or willfully
misapplied by the accused and converted to his own use, whereby as
a necessary, natural, or legitimate consequence, the association's
capital was reduced or placed beyond the control of the directors,
or its ability to meet its engagements or obligations or to
continue its business was lessened or destroyed, the intent to
injure or defraud the bank may be presumed."
In our opinion, there was evidence tending to establish a state
of case justifying the giving of this instruction, which was
unexceptionable as matter of law.
10. That the court erred in refusing to give the following
instruction, requested by defendant:
"If the jury shall find from the evidence that, on the 15th day
of April, A.D. 1895, E. W. Agnew, upon receipt of the check of the
Merchants' National Bank of Savannah for $3,400, used that check
and the proceeds of it for the payment of a debt of the First
National Bank of Ocala, then they must find upon that count in the
indictment that he did not fraudulently embezzle or misapply the
check or the proceeds of it."
The first court of the indictment charged that Agnew,
Page 165 U. S. 54
knowing his personal account with the bank to be largely
overdrawn, and that he was largely indebted to the bank, caused
this check for $3,400, which was the property of the bank, to be
entered to his personal credit on the books of the bank and thereby
made it subject to his disposal; and technically, the offense would
not have been, in itself, condoned by any rightful application
which he may have made of that particular amount of money. And,
while the evidence showed that the $3,400 was received from the
sale of stocks belonging to the bank, it also showed that Agnew
never charged himself with the $3,400 and credited stock account,
nor paid in that sum and made that credit. but that, when the bank
failed, the $3,400 still stood as applied on Agnew's credit, and
still remained an asset in the stock account. Such explanation as
was attempted was so unsatisfactory that we do not think the
refusal of the instruction constitutes reversible error.
11. That the court erred in not giving the following
instruction, asked for by defendant:
"That the written guaranty introduced and filed in evidence,
signed by E. W. Agnew, and conditioned for the payment of the
interest and principal of the bonds of the Globe Phosphate Mining
Company was upon its face a good, legal, and sufficient guaranty,
and that, if the jury shall find from the evidence that at the time
of the delivery by E. W. Agnew to the cashier of the First National
Bank of Ocala of the bonds of the Globe Phosphate Mining Company in
controversy, he also delivered the guaranty which has been
introduced in evidence, and they shall further find, from the
evidence, that at the time said guaranty was signed and delivered
that E. W. Agnew, the defendant, was solvent, and thoroughly able
to respond to the obligation, and that he signed and delivered the
guaranty with the knowledge of his solvency, and with intent to pay
the same when demand was made upon him for payment, then the jury
may find, from the evidence, that the defendant did not invest or
misapply the money arising from the sale of the said bonds, with
intent to defraud the association, or any one else."
The phosphate bonds were put in evidence and the record
Page 165 U. S. 55
should have contained a copy of at least one of them, but it
does not, and instead there is a brief statement that they were
bonds of
"the Globe Phosphate Mining & Manufacturing Company, Citrus
County, Florida, each of the value of one thousand dollars, payable
in gold coin of the United States, in ten years from date, or on
call at or after the expiration of two years from date, drawing
interest at eight percent semiannually, in gold coin, payable on
the 15th day of December and June in each year, according to tenor
of coupons attached, upon presentation and surrender of said
coupons, respectively; default in payment of coupons, and
continuing default for two months, the whole becomes due; all
bearing even date, and of the same tenor and same term (ten years),
executed in pursuance of vote of the stockholders and board of
directors, secured by first mortgage bond upon all property, of
even date, present and future, acquired by the company, the right
to redeem after two years being optional with the company; said
bonds dated 11th December, 1893, and signed by John A. Bishop and
Herbert A. Bishop; the original having been withdrawn by order of
the court, to be returned to the receiver of the First National
Bank of Ocala."
Agnew's guaranty was in these words:
"Know all men by these presents, that for and in consideration
of the sum of ($5) five dollars cash, in hand paid by the First
National Bank of Ocala, and for other good and valuable
consideration, I hereby guaranty to the said bank the payment on
demand of both principal and interest of fifteen (15) bonds of the
Globe Phosphate Mining & Manufacturing Company, numbered from
one (1) to five (5), both inclusive; eleven (11) to fifteen (15),
both inclusive, and twenty-one (21) to twenty-five (25), both
inclusive, for one thousand ($1,000) dollars each -- total, fifteen
thousand ($15,000) dollars -- and bearing interest at the rate of
eight (8 %) percent per annum. It is agreed and understood that I
hereby guaranty the payment of the principal of these bonds,
payable on demand, with accrued interest."
"This agreement and contract is to be binding on me, my heirs,
executors, administrators, or assigns. "
Page 165 U. S. 56
"Bonds of the Globe Phosphate Mining & Manufacturing
Company, Nos. 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55,
57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, and 79 are to be
included in the above guaranty, and I hereby guaranty principal and
interest on all of the above-described bonds."
The evidence was to the effect that five Globe Phosphate bonds
numbered from 1 to 5 were purchased by Agnew for the bank at fifty
cents on the dollar, and credited at par. But Agnew testified that
he purchased them for himself. It also appeared that two lots of
Globe Phosphate bonds of $10,000 each were purchased at twenty-five
cents on the dollar, and that Agnew was credited on his personal
account with $10,000, in each instance, and the bonds placed in the
assets of the bank, and that the bonds were subsequently sent away
to be used as collateral security, and the guaranty forwarded to be
put with them. The evidence further tended to show that the bonds
were of little, if any, value, and that Mr. Agnew's financial
condition was such as to place his guaranty in the same category.
And although Agnew testified on his own behalf, he did not refer to
the subject of the guaranty, or his intentions and ability in
regard to it, while it appeared that the credits of these bonds
were never consented to nor authorized at any meeting of the
directors or stockholders.
The bonds were payable in ten years, with an option to the
company to pay after two years, it being also provided that, for
default in payment of interest, which was payable semiannually,
continuing two months, the whole might become due. If the president
of the bank received a personal credit of $20,000 for these bonds,
under the circumstances disclosed, the court was not required to
instruct, as requested, that, from his guaranty that the bonds and
interest should be paid, the jury might find that there was no
intent to injure and defraud the bank in the transaction.
The true view of this branch of the case was fairly covered by
the charge of the court as follows:
"There is testimony tending to show that the defendant at the
time he was thus depositing the bonds, gave a guaranty that the
bonds were good, and that he would guaranty the payment of
principal
Page 165 U. S. 57
and interest. You can take that into consideration, and such
guaranty can only be considered as determining the value of those
bonds at that time, and the intent of the party in such
transaction. . . . As I say again, gentlemen, the only difficult
question for you to determine is the intent of the accused. The
question of the intent is to be determined by the facts and
circumstances, and the surroundings at the time of the transaction;
but, gentlemen, the law presumes that every party who in any way
attempts anything by any guaranty, or anything of that kind, which
is dependent upon future successful operations, takes the risk of
the success, and that, if a person commits an offense with the
intent of temporarily injuring or defrauding another party or a
banking institution, although it may be his intent at the time to
finally recompense or prevent any injury resulting from such act,
he is not protected by such intent to finally correct the temporary
wrong deed, or, in this case, if you are satisfied that at the time
he placed those bonds there, he knew that they were worthless, or
of a very small value, and had a large value charged to the bank,
and placed to his account, he did that with the intent, for the
time being, to injure the bank, and take a wrongful advantage of
the credit of the bank, no matter if at that time he had an intent
to in the future remedy any injury that might come to the bank, it
would not protect him, in your finding, or from your finding, what
the intent was at that time."
We have carefully explored the evidence, and considered the
errors assigned, whether pressed in argument or not, and have been
unable to discover any adequate ground for the reversal of the
judgment.
Judgment affirmed.
