Breese v. United States

• Citation: 106 F. 680
• Decision Date: 07 February 1901
• Docket Number: 338.
• Parties: BREESE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

106 F. 680

BREESE v. UNITED STATES.

No. 338.

United States Court of Appeals, Fourth Circuit.

February 7, 1901

Charles A. Moore and Joseph S. Adams (Tucker & Murphy and Pritchard &amp Rollins, on the brief), for plaintiff in error.

William P. Bynum, Jr., Special U.S. Atty. (A. E. Holton, U.S. Atty and Spencer Blackburn, Asst. U.S. Atty., on the brief).

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

SIMONTON Circuit Judge, and BRAWLEY, District Judge.

This case comes up by writ of error to the district court of the United States for the Western district of North Carolina. The defendant below, plaintiff in error here, William E. Breese president of the First National Bank of Asheville, was indicted for violating section 5209 of the Revised Statutes of the United States. The indictment contains 66 counts. Twenty-two counts, numbered 1, 4, 7, 10, 13, 16, 19, 22, 25 28, 31, 34, 37, 40, 43, 46, 49, 52, 55, 58, 61, and 64, charge him with embezzlement of the moneys, funds, and credits of the bank of which he was president. Another group of counts, numbered 2, 5, 8, 11, 14, 17, 20, 23, 26, 29, 32, 35, 38, 41, 44, 47, 50, 53, 56, 59, 62, and 65, charge him with wrongfully and willfully abstracting moneys of said bank. Another group of counts-- 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, and 66-- charge him with wrongfully and unlawfully misapplying moneys of said bank. The defendant, having been arraigned, pleaded not guilty to the indictment, a special order, however, having been entered that 'such plea shall not operate or have the effect to prevent him taking advantage upon motion in arrest of judgment or on a motion for a new trial of all matters and things which could be taken advantage of by motion to quash or demurrer. Upon motion in arrest of judgment or for a new trial, all such matters and things shall be heard and determined as if the same were being heard upon motions to quash or on demurrer. ' This order was filed 6th November, 1897. On 7th March, 1899, the defendant filed a demurrer to the 1st, 4th, 7th, 10th, 13th, 16th, 19th, 22d, 25th, 28th, 31st, 34th, 37th, 40th, 43d, 46th, 49th, 51st, 54th, 57th, 60th, and 63d counts of the indictment. Strictly speaking, this demurrer, as a demurrer, came too late after plea of the general issue. The preamble to the demurrer that it is filed by virtue of his right reserved and entered of record at the time he entered his plea of the general issue is not borne out by the record, as shown by the order above recited. Nor, strictly, can it be heard in arrest of judgment, as the verdict was a general verdict on all the counts of the indictment; and, if one of these be good, the verdict cannot be arrested. As no exception on this point has been taken by the government, the point raised in the demurrer will be discussed among the assignments of error. The demurrer was overruled. The cause was tried before a jury, and a general verdict of guilty was entered. Many exceptions were taken during the progress of the trial to the charge of the trial judge, and to matters occurring when and after the verdict was rendered. The case is here upon 16 assignments of error.

The first assignment of error and its subdivisions are upon the action of the court in overruling the demurrer. They deal with it as if it were a demurrer to the whole indictment. In this it is contradicted by the record, which limits it distinctly to the 22 counts above enumerated. Nor are these assignments of error sustained by the bill of exceptions. The exception is confined to the action of the court in overruling the demurrer, which appears in the record. An assignment of error cannot be used to enlarge an exception taken at the trial, or to import a question in the cause not raised in the court below. Ansbro v. U.S., 159 U.S.,at page 698, 16 Sup.Ct. 187, 40 L.Ed. 310; Claassen v. U.S., 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966. These assignments of error cannot be considered. The point sought to be raised in them will be discussed when the question of the refusal to grant the motion in arrest of judgment is reached.

The second assignment of error is to the refusal of the trial judge to require the prosecution to furnish the defendant with a bill of particulars. This assignment of error was not pressed in argument, and is without merit. The motion was addressed to the discretion of the court, and its refusal was a proper exercise of this discretion. With the exception, perhaps, of the particular counts in the indictment to which the defendant sought to interpose a demurrer, each of the others fully and clearly sets out every element necessary to constitute the offense intended to be punished, supplemented by averments showing how the abstraction in one class of charges and the willful appropriation in the other class were made, and that they were unlawful. This is all that the accused could require. No one can doubt as to the exact offense intended to be charged. The accused is clearly informed as to what charges he is called upon to meet. U.S. v. Simmons, 96 U.S. 360, 24 L.Ed. 819.

The third assignment of error is as to the introduction of certain testimony by the prosecution. It contains 16 specifications. The first of these specifications is as to the testimony of Dorsett, a teller in the bank. He refreshed his memory by examining entries in the books of the bank, and then testified to the facts as of his own knowledge. Some of these entries were in his own hand, and some in the handwriting of others. The matters involved were checks on the bank. The rule is stated by 1 Greenl.Ev. § 436, quoted and approved in Putnam v. U.S., 162 U.S.,at page 694, 16 Sup.Ct. 926, 40 L.Ed. 1121:

'Though a witness can testify only as to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book, and may be compelled to do so if the writing be presented in court. It does not seem necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided that, after inspecting it, he can speak to the facts from his own recollection.'

The second specification is of the same character, and meets the same answer. The third and fourth specifications relate to the testimony of the same witness respecting certain drafts of the First National Bank of Asheville on the Chemical Bank of New York, purchased by checks drawn by W. E. Breese. Dorsett was the teller. He was allowed to prove that the drafts were drawn upon a good account, that they were returned to the First National Bank as paid, and so that Breese got value for his check. There was no error in admitting this testimony. The fifth specification is to the admission of testimony as to the amount of general and special deposits in the bank. Standing by itself, this would appear immaterial. But, in view of other testimony in the cause, it became relevant. The remaining specifications under this assignment are addressed to testimony of certain witnesses. The prosecution had introduced evidence tending to prove that the defendant had admitted to the deputy comptroller of the currency that there had been placed in the bank and discounted by him, the cashier, and Dickerson, a director, worthless notes to an amount of $250,000 and upward; that by means of the credit obtained on these notes money had been withdrawn from the bank, Breese drawing a large sum; that these notes were found in the bank when it failed, and they constituted all the assets of the bank but $52,000, and in this $52,000 were included two notes, each for $10,000, signed by Breese and the cashier; that Breese also admitted that those notes upon which he had received credit were worthless, and that he knew it. The prosecution then introduced the makers of these notes to testify as to the time and circumstances under which they made them, their interest in the notes, and their own total insolvency. Connected with the evidence tending to show that Breese steadily overdrew his account in bank, knowing its totally insolvent condition, all the testimony is relevant; and so, also, the testimony alluded to in the specification just spoken of, as that showed the liability of the bank. So, when Aldrich, one of the witnesses objected to, testified that he had taken charge of the bank for the comptroller, that he found on hand in cash $480, and that all that he could realize from the assets was $7,852, the jury could have light given to them as to the intent with which the defendant overdrew his account. Proof of these collateral facts was clearly competent in order to discover the intent. Standing alone, the mere overdraft of a bank account, even by the president, may not be a criminal act, and from it by itself one need not infer an intent to injury the bank. But when it is shown that at the date of the overdraft the bank was hopelessly insolvent; that it was made insolvent by reason of the fact that its assets were notes of wholly irresponsible persons; that these notes had been used by the president in connivance with his cashier, who was a director, and with another director, in order to give him a fictitious credit, and that it was used freely,-- there is room for inference that the overdraft was made with intent to abstract or misapply the moneys, funds, and credits of the bank. The course pursued by the trial judge is laid down by Mr. Justice Story in Wood v. U.S., 16 Pet. 342, 10 L.Ed. 987:

'The question was one of fraudulent intent or not, and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil

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