In an indictment against the President and the. assistant
cashier of a national bank for making a false entry in a report,
under Rev.Stat. § 5209, the report need not be described with
technical accuracy; nor is it necessary to allege that the report
in which the false entry was made was verified by the oath or
affirmation of the president or cashier, or attested by the
signature of the directors.
In such an indictment the true test is not whether it might
possibly have been made more certain, but whether it contains every
element of the
Page 157 U. S. 287
offense intended to be charged and sufficiently apprises the
defendant of what he must be prepared to meet, and, in case any
other proceedings are taken against him for a similar offense,
whether the record shows with accuracy to what extent he may plead
a former acquittal or conviction.
Several objections to the admissibility of evidence considered
and disposed of.
A note whose payment is guaranteed by a national bank is a
liability of the bank which is required by law (Rev.Stat. § 5211)
to be shown in the report to the Comptroller of the Currency.
Some objections to the charge considered and disposed of.
The defendants requested the court to charge the jury as
follows:
"You are further instructed that the defendants are presumed to
be innocent until the contrary appears beyond a reasonable doubt,
and that every reasonable doubt or presumption arising from the
evidence must be construed in their favor."
The court refused to give this instruction, but instead thereof
gave a carefully prepared definition of reasonable doubt, without
referring to the presumption of innocence which attends an accused
at every stage of the proceeding.
Held, following
Coffin v. United States, 156 U. S. 432,
that this was error, as the defendants were entitled to an
instruction upon the point of the presumption of innocence, if
requested.
This was a writ of error to review a conviction of William H.
Cochran, president, and Robert H. Sayre, assistant cashier, of the
First National Bank of Del Norte, Colorado, for making a false
entry in a report to the Comptroller of the Currency. On November
22, 1893, the grand jury presented three separate indictments
against the plaintiffs in error, which were numbered 959, 960, and
992, respectively. These indictments were identical in language
except so far as it was necessary to change them so that the
plaintiffs in error could both be charged as principals and as
accessories of each other. In No. 959, both were charged as
principals for making false entries in their reports. In No. 960,
Sayre was charged with making, and Cochran with aiding, abetting,
and procuring Sayre to make, such false entries, and in No. 992,
Cochran was charged with making, and Sayre as an accessory.
Each indictment contained twelve counts, and, on motion to
quash, the tenth, eleventh, and twelfth counts of each indictment
were held to be insufficient. On May 11, 1894, the three
indictments were consolidated and tried as one, and on
Page 157 U. S. 288
June 6, 1894, the defendants were convicted upon the first count
of the indictment originally numbered 960.
Whereupon, defendants sued out this writ of error.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
As the defendants were convicted solely upon the first count in
indictment No. 960, it is only necessary to consider the questions
arising upon this count.
1. The first assignment of error relates to the sufficiency of
this count, which charges that
"Robert H. Sayre, . . . William H. Cochran being then and there
president, the said Robert H. Sayre being then and there assistant
cashier of the First National Bank of Del Norte, Colorado, . . .
did make, in a certain report of the condition of the First
National Bank, . . . at the close of business on the 30th of
September, 1892, made to the Comptroller of the Currency, in
accordance with the provisions of section 5211 of the Revised
Statutes of the United States, a certain entry."
The first objection to the indictment is that as section 5211,
referred to in this count, provides that
"every
association shall make to the Comptroller of the
Currency not less than five reports during each year, according to
the form which may be prescribed by him, verified by the oath or
affirmation of the president or cashier of such association, and
attested by the signature of at least three of the directors,"
the indictment should aver that the report was made by the
association. The offense charged, however, is not the making or the
failure to make the report under section 5211, the failure to make
which report subjects such association to a penalty under section
5213, but the making of a false entry in a report, under section
5209, which provides that "every president, director, cashier,
teller, clerk, or agent of any association"
Page 157 U. S. 289
who makes any such false entry in any report shall be guilty of
a misdemeanor. Section 5209 is the statute violated, and the
reference to section 5211 is merely for the purpose of identifying
the report as one required by law to be made. In addition to this,
the indictment refers to the report as one made "in accordance with
the provisions of section 5211," which would imply that it was made
by the association, and was properly verified and attested as
required by that section. Had the indictment been against the
association for a failure to make such reports, it would doubtless
be necessary to aver that the report was required to be made by the
association; but, as the report is mentioned only for the purpose
of showing that it was one required by law to be made, it need not
be described with technical accuracy.
2. The second objection is that Sayre had no authority to make
the report, being only an assistant cashier. While under section
5211 the report in question ought to be made by the association,
verified by the oath or affirmation of the president or cashier,
and attested by the signature of three directors, it was no less an
offense under section 5209 for an assistant cashier to make a false
entry in a report which was to be subsequently verified by the oath
of the president or cashier in person than it would have been if
the entry had been made by the cashier who verified the report. As
the language of section 5209 applies not only to the president and
cashier, but to any director, teller, or agent of any such
association, Sayre, as assistant cashier, certainly fell within the
category of clerk or agent. If he made a false entry in a report
required by section 5211, it made no difference whether the report
was subsequently verified by him or by the president or cashier in
person. There is no penalty affixed by section 5211 to the false
verification of the president or cashier. The offense is in making
the false entry with intent to injure or defraud the association.
etc.
For the reason above given, we do not think it necessary to
allege that the report in which the false entry was made was
actually verified by the oath or affirmation of the president or
cashier, or attested by the signature of the directors,
Page 157 U. S. 290
or at least that the fact that it is averred to have been made
"in accordance with the provisions of section 5211," is a
sufficient averment that it was properly verified and attested. If
such report were not properly verified and attested, it would
doubtless be competent for the Comptroller of the Currency to
reject it, or to proceed against the association under section 5213
for failure to make and transmit a proper report. But if an
assistant cashier makes a false entry in a report which is designed
to be and is made use of as a report to the Comptroller of the
Currency under section 5211, it is difficult to see why it is not
equally an offense if the Comptroller of the Currency chooses to
accept such report without the proper attestation and
verification.
These cover all the objections taken to the indictment in the
brief of defendants' counsel.
Few indictments under the national banking law are so skillfully
drawn as to be beyond the hypercriticism of astute counsel -- few
which might not be made more definite by additional allegations.
But the true test is not whether it might possibly have been made
more certain, but whether it contains every element of the offense
intended to be charged and sufficiently apprises the defendant of
what he must be prepared to meet, and, in case any other
proceedings are taken against him for a similar offense, whether
the record shows with accuracy to what extent he may plead a former
acquittal or conviction.
Evans v. United States,
153 U. S. 584,
153 U. S.
587-588;
Batchelor v. United States,
156 U. S. 426.
3. Error is assigned to the ruling of the court permitting the
district attorney to ask of the witness Charles W. Thomas whether
he had ever had any experience in a bank, or the business of a
bank, before he came to Colorado. Thomas, who it subsequently
appears was made cashier of the bank, gave evidence tending to
prove that he first met Cochran in the summer of 1889 on a visit to
Colorado, and that since May 1, 1890, he had lived at Del Norte. He
was then asked the question "Had you ever had any experience in a
bank, or the business of a bank, before you came to Colorado?"
There was no error in permitting this interrogatory to be
Page 157 U. S. 291
put. Questions regarding he age, antecedents, business, and
experience of a witness are largely within the discretion of the
court, and unless it manifestly appears that such questions are put
for an improper purpose, such discretion is not reviewable on
error. The weight to be given to the testimony of this witness as
to the entries in question might depend largely not only upon his
intelligence, but upon his familiarity with the banking business.
If he were a man of previous experience in banking, he would be the
better qualified to explain to the jury the significance of the
entries in question and the manner in which the reports to the
Comptroller of the Currency were made up. If, upon the other hand,
he were appointed because of his inexperience as a merely
perfunctory official and because he was intended to be made use of
as a tool of the defendants in carrying out their plans, this was a
fact which the jury were entitled to know, and an item of testimony
having some bearing upon the intent to defraud in making the false
entry in question.
4. The objection to the following question put to Thomas is
equally untenable: "When the Comptroller would call on the bank for
statements, what was your habit as to taking any part in the
getting up of such statement?" His answer, "I never made any
statements," shows of itself that the question was not prejudicial
in the answer actually given. If this be the case, the materiality
or propriety of the question is of no importance. Beyond this,
however, the witness was the cashier of the bank, and was required
by section 5211 to verify the reports of the Comptroller of the
Currency. Naturally he was the one to prepare these reports, or at
least to take part in preparing them, and if he were not called
upon to do so, the fact was at least deserving of explanation, and
properly the subject of comment by counsel. The pertinence of the
question was manifest in view of his subsequent testimony that
"the statements were handed to him, and they told him that the
statements were all right, and he would sign them. . . . The
reports were never made out by witness, but by some one else. They
were made out mostly by Sayre, sometimes under the direction of
Cochran, and sometimes written out by other
Page 157 U. S. 292
parties in the bank. . . . Either Cochran or Sayre told him that
the statements were all made out ready to sign, and he signed them
without examining them, as they were handed to him, and without
assisting in their preparation or comparing them with the books of
the bank."
5. So also the question that was put to the witness when shown a
note of the Hanover National Bank, which he testified was filled
out and signed in the handwriting of the defendant Sayre, as to
whether it was a rediscounted note, was perfectly proper, although
objected to upon the ground that the witness had shown an entire
lack of qualification to pass upon the question whether the note
was a rediscount or not. As it appears that the witness had been
acting cashier in the bank for two months, even if he had had no
prior experience, he could hardly have failed in that time to be
competent to express an opinion as to whether a note was a
rediscount or not. The weight to be given to his testimony was, of
course, a question for the jury.
6. The fifth assignment is to the introduction of the report of
the bank of September 30, 1892, to the Comptroller of the Currency,
which was objected to upon the ground first that the indictment
charged the defendants -- one as president, and the other as
assistant cashier -- with making the reports, while the report in
question appears to have been made and verified by Charles W.
Thomas as cashier, and to have been signed by different parties as
directors; second, because neither of the defendants could be
convicted under the indictments as principals in making the said
reports, but only as accessories, if at all; third, because no one
except he who verified the reports could be convicted under this
indictment, and that the defendants were charged with having, as
president and assistant cashier, made the false reports and entries
therein, whereas the statements offered were signed by defendant
Cochran as a director, while the defendant Sayre did not sign the
reports at all.
The first objection is untrue as a matter of fact. The
indictment does not charge the defendants with making a false
report, but that they
"did make in a certain report . . . a certain
Page 157 U. S. 293
entry under the head of 'liabilities,' and . . . that the said
entry so made as aforesaid was then and there false."
The argument of the defendants assumes that the making of the
entry and the making of the report are the same thing, whereas in
fact they are wholly different. By section 5211, the report must be
made by the
association, and must be verified by the oath
or affirmation of the president or cashier and attested by the
signature of at least three of the directors. But under section
5209 there is no penalty affixed to the association or its officers
for making a false report, nor to the president or cashier for
verifying such report. The penalty imposed by section 5209 is
affixed to the one who makes any false entry in any book, report,
or statement of the association, and that penalty is applicable to
any officer or agent of the bank who actually makes the entry with
intent to injure or defraud, or to deceive any agent appointed to
examine the affairs of any such association. As was observed by Mr.
Justice Woods in
United States v. Britton, 107 U.
S. 655,
107 U. S. 662,
to describe the offense of making a false entry requires the
pleader to aver
"(1) that the accused was the president or other officer of a
national banking association which was carrying on a banking
business; (2) that, being such president or other officer, he made
in a book, report, or statement of the association (describing it)
a false entry, describing it; (3) that such false entry was made
with intent to injure or defraud the association, or to deceive any
agent, describing him, appointed to examine the affairs of the
association."
The indictment in this case is a substantial copy of that
approved by this Court in the
Britton case, except that
the false entry is charged to have been made in a report to the
Comptroller of the Currency instead of an entry made in one of the
books of the bank.
The
second objection, that the defendants could not be
convicted as principals in making the reports, but only as
accessories, would probably be true if they were charged with
making such reports. And the
third objection, that no one
except he who verifies the reports can be convicted under said
indictments, is unsound as matter of law for the reason
Page 157 U. S. 294
above stated -- that the penalty is affixed to the making of the
false entry, and not at all to the making of the report. While the
officers of the bank who verify and attest the reports are
doubtless responsible for what is contained in them, if, as matter
of fact and as often happens, the entries in such reports are
actually made by other agents of the association, it does not
diminish the criminality of such agents in the eye of the law that
the reports are ostensibly those of the president and cashier. If
the statements of Thomas be taken as true, he, although verifying
the reports as cashier, could not be held criminally liable for
their falsity, since he took and believed the statements of Cochran
and Sayre as to the truth and correctness of such reports. If this
be true, there was lacking on his part that intent to defraud the
association or to deceive the Comptroller of the Currency which is
made by section 5209 a material element of the offense. If the
persons who actually prepared the report and made the false entries
therein cannot be held responsible because they did not ostensibly
verify or attest the reports, then, however false such reports
might be, no one could be held criminally responsible. This would
certainly be an easy method of making false reports and avoiding
all liability therefor. The person who in fact made the false
entries would not be liable, because he did not verify the report.
The person who verified the report would not be liable, because he
was wholly ignorant of the truth or falsity of the entries, and
innocent of any criminal intent. His ignorance of the truth of the
report might not, and probably would not, excuse him from liability
in a civil action for negligence, but he could only be held
criminally for an evil intent actually existing in his mind -- at
least unless his ignorance were willful or his negligence in
failing to inform himself so gross as to characterize his conduct
as fraudulent.
As it was admitted that Sayre actually made the entries in, and
filled out, the report in question, he was properly charged as
principal, and it was a question for the jury to say whether
Cochran, the president, so far aided and abetted him in making such
entries as to make him liable as accessory.
Page 157 U. S. 295
7. A large number of other objections were made and exceptions
taken to the admission of testimony which may not arise upon
another trial and which it is unnecessary here to discuss. Certain
of them, however, are based upon the character of the false entry
alleged to have been made, and go to the very foundation of the
prosecution. In this particular, the indictment charges the
defendants with making
"a certain entry under the head of 'Liabilities' in said report,
numbered '19,' which said entry was then and there in the words and
figures following, that is to say: '19. Liabilities other than
those above stated, none,' and which said entry, so as aforesaid
made in said report, then and there purported to show, and did in
substance and effect indicate and declare, that said association
had no other debt and liability other than those debts and
liabilities named and set forth in said report, under said head of
'Liabilities,' named and set forth in said report, under said head
of 'Liabilities,' in said report."
After setting forth the general falsity of the entry, the
indictment avers
"that the said entry, so made as aforesaid, was then and there
false in this, that the said association was then and there
indebted and liable to the Hanover National Bank of New York City
in the sum of five thousand dollars, evidenced by a certain
promissory note executed by the said Robert H. Sayre and one A. H.
Clark, and payment thereof guarantied by said association to said
Hanover National Bank of New York City, as he, the said Robert H.
Sayre, then and there well knew."
The note was made August 21, 1892, and was payable four months
after date to the First National Bank of Del Norte, and
consequently was not due until December 21st. The guaranty, which
was endorsed upon the back, was as follows:
"For value received, we hereby guaranty payment of the within
note at maturity, or at any time thereafter, with interest at the
rate of six percent per annum until paid, waiving demand of notice
of nonpayment or protest. W. H. Cochran, president."
The indictment therefore raises the question whether an
unmatured note, the payment of which at maturity is guaranteed
Page 157 U. S. 296
by the bank, is such a liability as is required by law to be
shown in the report to the Comptroller of the Currency. The fact
that the note had not matured cuts no figure in the case. If the
bank had made the note, it would not be claimed that the note was
not a liability though it were not yet due. The real question is
whether the fact that the bank was only contingently liable
prevented its character as a "liability" of the bank from
attaching.
We know of no definition of the word "liability," either given
in the dictionaries of as used in the common speech of men, which
restricts it to such as are absolute, or excludes the idea of
contingency. In fact, it is more frequently used in the latter
sense than in the former, as when we speak of the liability of an
insurer or a common carrier, or the liability to accidents or to
errors, and in Webster's Dictionary the word "liable" is said to
refer "to a future possible or probable happening, which may not
actually occur, as horses are liable to slip; even the sagacious
are liable to make mistakes."
That Congress must have contemplated contingent liabilities is
evident when we consider the object of section 5211, which was to
apprise the Comptroller of the Currency and the public of the
condition of each national bank at stated periods. It is manifest
that a report which failed to specify the liabilities which the
bank had assumed and which it might be called upon to discharge
would represent very imperfectly the actual financial status of the
association. While it is true that the bank could not be made
chargeable with the payment of the note until its maturity, the
guaranty in this case was not that the makers were solvent, or that
the bank should pay in case they could not be compelled to do so,
but was a guaranty of the payment of the note at maturity -- such a
guaranty in fact as, within the recognized principles of law, would
authorize the holder to proceed immediately against the guarantor
without exhausting his remedy against the makers.
City of
Memphis v. Brown, 20 Wall. 289,
87 U. S. 310;
Arents v. Commonwealth, 18 Grattan 750;
Campbell v.
Baker, 46 Penn.St. 245;
Roberts v. Riddle, 79
Penn.St. 468;
Douglass v.
Reynolds, 7 Pet. 113,
32 U. S.
126.
Page 157 U. S. 297
We have held that a contract of guaranty is within the implied
powers of a national bank.
People's Bank v. National Bank,
101 U. S. 181. And
in this case there seems to have been good ground for believing
that the note actually belonged to the bank, as Cochran, president
of the bank, in his letter of December 14, 1891, transmitting the
original note to the cashier of the New York bank, says: "We
enclose a note of five thousand dollars, signed by Sayre and Clark,
guarantied by us, which please
place to our credit." It
appears, too, by the testimony of the cashier of this bank, that
the note was discounted by the cashier of the Hanover National
Bank, December 21, 1891, for account of the First National Bank of
Del Norte, which was the original transaction for the same amount
executed by the same parties.
8. Several of the instructions to the jury relate to the
questions whether the note given by Sayre and Clark was immediately
discounted by the Del Norte Bank, and the amount paid to Sayre, in
which case the court charged that it was a loan to Sayre, and that
the note should have appeared in the report among the notes and
bills rediscounted, or whether it was a sale of the note to the
Hanover National Bank upon the credit of Sayre and Clark and the
Del Norte Bank, in which case the court charged that all parties
would be liable as makers, and the note should have appeared in the
report under the head of "Bills Payable." We fail to see how the
defendant was prejudiced by these instructions. The material
question was not under what particular head the note should have
appeared, but whether it should not have appeared somewhere in the
report as a liability. In that view, the court charged:
"The pleader, in setting it forth, seems to have been in doubt
as to whether it should be called one thing or another, and so he
assumed that it was one which should have been mentioned under the
head of 'Liabilities Other Than Those Above stated,' and I think be
could reasonably do so, and that he may charge that the entry was
not true, as he has done."
Of course, the defendant, in this connection, could show that
the entry was made under some other head, but no attempt appears to
have been made to do so.
Page 157 U. S. 298
9. The thirtieth assignment is to an alleged error of the court
in refusing to instruct the jury as follows:
"You are instructed that a false entry in a report of a national
bank officer or director to the Comptroller of the Currency, within
the meaning of the Revised Statutes, section 5209, is not merely an
incorrect entry made through inadvertence, negligence, or mistake,
but is an entry known to the maker to be untrue and incorrect, and
intentionally entered while so knowing its false and untrue
character. The intention to deceive is essential to constitute a
violation of the statute, and you must be satisfied beyond a
reasonable doubt, from the evidence first that the defendants, or
one of them, made a false entry in said report, and second that it
was made with the intention of misleading or deceiving the
Comptroller of the Currency or some other person or persons alleged
in the said indictment."
The court, in this connection, charged:
"There is no doubt that intent to injure and defraud must exist,
in order to make the party liable under this statute; that is to
say, if the omission was ignorantly made -- if it was made merely
out of stupidity, and because the parties did not understand what
was required of them -- there is no offense under the statute. The
statute relates to intentional wrongdoing. The intent must have
been, as laid in the indictment, to mislead and deceive one of
these parties, either some of the officers of the bank, or the
officer of the government appointed to examine into the affairs of
the bank. . . . So that you must find not only the fact that there
was an omission to make the proper entry, but that it was with an
intent to conceal the fact from somebody who was concerned in the
bank, or concerned in overseeing it, and supervising its operations
and the conduct of its business."
We think this charge practically covers everything contained in
the instruction refused. Certainly, the jury could not have
convicted if they had found that the entry had been omitted through
any inadvertence or negligence or in ignorance of its untrue
character.
10. The thirty-sixth assignment is to an error of the court in
refusing to give the following instructions:
"You are further instructed that the defendants are presumed to
be
Page 157 U. S. 299
innocent until the contrary appears beyond a reasonable doubt,
and that every reasonable doubt or presumption arising from the
evidence must be construed in their favor."
In the recent case of
Coffin v. United States,
156 U. S. 432, one
of the instructions asked and refused was as follows:
"The law presumes that persons charged with crime are innocent
until they are proven by competent evidence to be guilty. To the
benefit of this presumption the defendants are all entitled, and
this presumption stands as their sufficient protection unless it
has been removed by evidence proving their guilt beyond a
reasonable doubt."
The court instructed the jury as follows:
"Before you can find any on of the defendants guilty, you must
be satisfied of his guilt, as charged in some of the counts of the
indictment, beyond a reasonable doubt."
And again:
"You may find the defendants guilty on all the counts of the
indictments if you are satisfied that, beyond a reasonable doubt,
the evidence justifies it."
In other words, while the court refused to instruct as to the
presumption of innocence, it did instruct fully as to reasonable
doubt, and the contention was that, as the charge given by the
court on the subject of reasonable doubt substantially embodied the
statement of the presumption of innocence, the court was justified
in refusing, in terms, to grant the latter. It was held that the
charge that there could not be a conviction unless the proofs
showed guilt beyond a reasonable doubt did not so completely embody
the statement of the presumption of innocence as to justify the
court in refusing, when requested, to inform the jury concerning
the latter. The court drew a distinction between the presumption of
innocence as one of the instruments of proof contributing to bring
about that state of case from which reasonable doubt arises and a
condition of mind called "reasonable doubt produced by the
evidence."
In the case under consideration, the court charged the jury
that
"these matters are to be established in your minds beyond
reasonable doubt, and upon that subject, as to what is a reasonable
doubt which should be heeded by the jury in a trial of this kind, I
read an instruction prepared by defendants' counsel."
There follows here a carefully prepared
Page 157 U. S. 300
definition of the words "reasonable doubt," but there is nothing
in this request, as given by the court, which refers to the
presumption of innocence which attends the accused at every stage
of the proceeding, and we think the defendants were entitled to an
instruction upon that point, if requested. It is frequently assumed
by courts that an instruction to a jury that they must not convict
unless satisfied of the defendant's guilt beyond a reasonable doubt
carries with it an implication that the presumption of innocence
has been overborne by satisfactory evidence of guilt. This, as
stated in the
Coffin case, is the tenor of some of the
authorities upon the subject; but in that case, they were
distinguished, and a presumption of innocence said to be
"a conclusion drawn by the law in favor of the citizen by virtue
whereof, when brought to trial upon a criminal charge, he must be
acquitted unless he is proven to be guilty,"
while reasonable doubt is defined as
"a condition of mind produced by the proof resulting from the
evidence in the cause. . . . To say that the one is the equivalent
of the other is therefore to say that legal evidence can be
excluded from the jury and such exclusion can be cured by
instructing them correctly in regard to the method by which they
are required to reach their conclusion upon the proof actually
before them."
We held that this could not be done -- in other words, that the
exclusion of an important element of truth could not be justified
by correctly instructing as to the proof admitted. In the case
under consideration, counsel asked for a specific instruction upon
the defendants' presumption of innocence, and we think it should
have been given.
The
Coffin case is conclusive in this particular, and
it results that the judgment of the court below must be
Reversed, and the case remanded, with instructions to grant
a new trial.