Bonner v. United States, 7447.
| Decision Date | 09 February 1935 |
| Docket Number | No. 7447.,7447. |
| Citation | 74 F.2d 652 |
| Parties | BONNER et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leonard Brown, T. P. Hull, Herbert Oliver, and Dave Watson, all of San Antonio, Tex., J. H. Cunningham, Jr., of St. Louis, Mo., and Harold J. Bandy, of Granite City, Ill., and William C. Orchard and James Edward Reed, both of New Orleans, La., for appellants.
W. R. Smith, Jr., U. S. Atty., and Ben F. Foster and James F. Jackson, Asst. U. S. Attys., all of San Antonio, Tex.
Before BRYAN, FOSTER, and WALKER, Circuit Judges.
In a criminal prosecution under 12 US CA § 592, appellants Bonner, Cunningham, and Morrow were convicted upon five counts of an indictment charging Bonner with five separate offenses of embezzlement of the funds of the Commercial National Bank of San Antonio, Tex., of which he was alleged to be the president, "with intent to defraud" that bank, and charging others, including Cunningham and Morrow, "with like intent," with aiding and abetting Bonner in the commission of those offenses. Appellants were also convicted upon companion counts alleging misapplication of the bank's funds and the making of false entries in the bank's books, and upon a single count for conspiracy; but, in the view we take of the case, all except the charges relating to embezzlement may be disregarded. A maximum sentence for a single offense was imposed generally on three embezzlement and several misapplication and false entry counts; and likewise a sentence, less than the maximum provided by law for any one of the substantive offenses, was imposed generally on the other two embezzlement counts, the remaining misapplication and false entry counts, and the conspiracy count, with the result that the embezzlement counts alone were sufficient to support both sentences. Assuming that the question whether the judgments should be affirmed or reversed depends upon the charges and proofs of embezzlement, the only assignments properly presented for our consideration are that the trial court erred in overruling (1) the demurrers of appellants to the embezzlement counts, and (2) their motions for directed verdicts.
Appellants argue that their demurrers should have been sustained because of the failure of the indictment to allege that Cunningham and Morrow knew Bonner was president of the bank, and also because the allegation that they aided and abetted him with "like intent" was insufficient; but we think the indictment, in the particulars complained of, was sufficient. United States v. Northway, 120 U. S. 327, 7 S. Ct. 580, 30 L. Ed. 664; Claassen v. United States, 142 U. S. 140, 12 S. Ct. 169, 35 L. Ed. 966.
As to the evidence: In November, 1932, five United States government bonds, each for $100,000, payable to bearer, were stolen from a bank in New York City. In March, 1933, all these bonds came into the possession of the bank in San Antonio of which Bonner was president. Morrow delivered them all to Bonner, one each on March 1, 20, 21, 22, and 23. Appellants agree that on March 1 Cunningham and Morrow came to the bank and before the first bond was delivered Bonner had the cashier make out a bank draft on a branch Federal Reserve Bank in San Antonio for $100,000, and that amount of money was delivered to Bonner by the cashier in the presence of Cunningham and Morrow. After this was done Bonner sent the bond over to the Federal Reserve and borrowed $100,000 on it. The other bonds were handled in practically the same way, except that the drafts on the Federal Reserve were for $92,500 each, although the full amount of $100,000 was borrowed on each. The cash proceeds of each draft were taken in $50 and $100 bills. All these transactions occurred while the market price of the bonds was around 98 per cent. of par. Under Bonner's instructions book entries were made purporting to show that the bank...
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