Bacon v. United States

• Decision Date: 25 September 1899
• Docket Number: 1,066.
• Citation: 97 F. 35
• Parties: BACON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 35

BACON v. UNITED STATES.

No. 1,066.

United States Court of Appeals, Eighth Circuit.

September 25, 1899

George Sutherland and John M. Zane (Hiram E. Booth, on the brief) for plaintiff in error.

John W Judd, for the United States.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

James H. Bacon, the plaintiff in error, was indicted and tried in the circuit court of the United States for the district of Utah for certain offenses denounced by section 5209 of the Revised Statutes of the United States. The indictment under which he was tried contained eight counts, but at the conclusion of the evidence the court withdrew from the consideration of the jury the first, second, fifth, and seventh counts, and a conviction was had on the third and fourth counts only. The charge contained in the third and fourth counts, of which the accused was found guilty, was, in substance, that in a report made by him, as president of the American National Bank of Salt Lake City, to the comptroller of the currency, on December 28, 1893, which purported to show the true condition of said bank on December 19, 1893, he had stated under oath that the sum due from individual depositors to said bank on account of overdrafts was only $5,755.93, whereas in truth and in fact the amount then due on account of overdrafts was $14,479.82, as the defendant well knew, and that such false report was made with intent to injure and defraud said bank, and to deceive any agent who might be appointed by the comptroller of the currency to examine its affairs. It was admitted by the defendant below in the course of the trial-- and concerning that fact there was no controversy-- that the books of the American National Bank of Salt Lake City showed overdrafts on the part of individual depositors at the close of business on December 19, 1893, which amounted in the aggregate to $14,479.82. But it was claimed by the defendant that certain depositors whose accounts appeared to be overdrawn at that time to the amount of $8,723.89 had theretofore executed and delivered notes to the bank to cover any possible overdraft of their respective accounts which might subsequently occur, and that in making up his report to the comptroller on December 28, 1893, the defendant had deducted the latter sum from the total amount of the overdrafts as disclosed by the books, and had reported it to the comptroller of the currency under the head of loans and discounted, and the proceeds thereof passed to the credit of the respective makers on the books of the bank. The defendant further claimed that he had so reported a portion of the overdrafts amounting, as aforesaid, to $8,723.89 because he had been advised previously by a bank examiner by the name of Lazear that that was the proper way to report overdrafts when the bank held notes representing the same and that he had so acted in the utmost good faith without criminal intent. He was contradicted on this point, however, by Lazear, from whom he claimed to have received the aforesaid advice; the latter testifying, in substance, that previous to the commission of the alleged offense he had given no such advice to the accused, but had instructed him, on the contrary, that advances to customers appearing on the books as overdrafts should be so reported to the comptroller of the currency. The trial judge allowed the jury to decide this controverted issue of fact. He also allowed the jury to determine, in the light of all the testimony, whether the bank, on December 19, 1893, did in fact hold notes to the amount of $8,723.89, representing a portion of the aggregate overdraft which the books then disclosed; and he instructed the jurors, in substance, that if they believed that a portion of the overdraft was thus reported by the accused as loans and discounts, in pursuance of an honest belief that that was the proper way to report them in making the report complained of, then there was no such intent to defraud or deceive as would support a conviction. In view of these facts, we must assume either that the jury disbelieved the testimony tending to show that the bank held notes as claimed on December 19, 1893, representing a portion of the overdraft, or that they found that, even if the bank did hold such notes, the accused was well aware that the entire overdraft disclosed by the books on that day should have been reported as an overdraft, and that the evidence established an intent on the part of the defendant either to deceive or defraud.

With this explanation of the general features of the case, we proceed to consider the alleged errors that have been called to our attention. When the prosecution, to sustain the issue on its part, offered in evidence the copy of the report referred to in the indictment, purporting to show the condition of the American National Bank of Salt Lake City on December 19, 1893, which was duly authenticated under the hand and official seal of James H. Eckels, comptroller of the currency, and in connection therewith offered the original report, the signature of the defendant to the original report seems to have been admitted by his counsel to be genuine. Both the original report and the copy thereof were objected to, however, by the defendant below on the ground that the prosecution had not shown that the report was made in pursuance of a request therefor regularly issued by the comptroller of the currency, which objection was by the court overruled, and an exception was saved. Section 5211 of the Revised Statutes required every national banking association to make out less than five reports each year to the comptroller of the currency, according to a form prescribed by that officer, which reports, as the statute declares, must be verified by the oath or affirmation of the president or cashier of the association in whose behalf the report is made, and attested by the signature of at least three of its directors. The statute further provides that such reports shall be transmitted within five days after the receipt of a request therefor from the comptroller, and that the latter officer shall have power to call for special reports whenever, in his judgment, the same are necessary. The objection to the report which had made by the defendant was in substance, that it had not been shown that the report was made in obedience to a requisition for the comptroller, the claim being that by the provisions of section 5209 of the Revised Statutes, under which counts 3 and 4 of the indictment were framed, no offense is committed if a bank officer does make a false report to the comptroller of the currency in relation to the condition of the bank, unless the report is made in obedience to a request from the latter officer. It will be observed that section 5209, in defining the offense of making a false report, contains no such limitation as that sought to be imposed. The language of the law is general that 'every president, director, cashier, teller, clerk or agent of any association * * * who makes any false entry in any book, report or statement of the association, with intent,' etc., 'shall be deemed guilty of a misdemeanor, * * * ' which language may as well include a false report voluntarily made by a bank official to the comptroller of the currency to influence his action, and accomplish some fraudulent purpose, as a false report made in pursuance of a call or request from that officer. We perceive no reason why a false report or statement made voluntarily to the comptroller of the currency in relation to the condition of a national bank for the purpose of inducing some action on the comptroller's part, or of forestalling certain action which he contemplates taking, should not be deemed an offense, as well as the making of a false report pursuant to a call or request from that officer, provided the act is done with the intent specified in the statute. The law was designed, we think, to prevent bank officials and employes from making any false entry in the books of the bank, and from making any false representations concerning its financial condition and resources in any report or statement which they may see fit to make in behalf of the bank to the comptroller of the currency, or to persons appointed to examine its condition, for the purpose of influencing their action. The reasons given in U.S. v. Booker, 80 F. 376, for holding that the report referred to in section 5209 is not restricted to the reports specified in sections 5211, 5212, but comprehends as well other reports made in behalf of national banking associations, commend themselves to our judgment as in all respects sound. Moreover, if it should be conceded that section 5209 has reference only to false reports that are made to the comptroller pursuant to his request, we should nevertheless feel constrained to hold that, when the report in this case was admitted in evidence, the proof was adequate to create a presumption that the report had been made in obedience to a request from the comptroller, and that no further evidence on that point was necessary to warrant its admission. It emanated from a high public office. It was made on a form that had been prescribed by the comptroller of the currency for use by national banks when reports as to their condition were called for. The copy of the report was duly authenticated under the hand and seal of that officer as a copy of an original report, properly on file in his office; and upon the assumption that the law affords no warrant for the making and filing of such reports in the office of the comptroller without a precedent request a presumption naturally arose from the fact that the report had been accepted and filed that it had been duly called for by the comptroller. We think, therefore,...