Brickey v. United States

• Decision Date: 09 December 1941
• Docket Number: No. 11911.,11911.
• Citation: 123 F.2d 341
• Parties: BRICKEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 341 (1941)

BRICKEY v. UNITED STATES.

No. 11911.

Circuit Court of Appeals, Eighth Circuit.

November 21, 1941.

Rehearing Denied December 9, 1941.

Cullen Coil, of St. Louis, Mo. (Roscoe Anderson, of St. Louis, Mo., on the brief), for appellant.

David M. Robinson, Ass't U. S. Atty., of St. Louis, Mo. (Harry C. Blanton, U. S. Atty., of Sikeston, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

Section 592 of 12 U.S.C.A. makes it a misdemeanor for "Any officer, director, agent, or employee of any * * * insured bank * * * who makes any false entry in any * * * report, or statement of such * * * insured bank, with intent in any case to injure or defraud such * * * insured bank * * * or to deceive any officer of such * * * insured bank, * * * or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such * * * insured bank, * * * and every person who, with like intent, aids or abets any officer, director, agent, employee", etc.

The appellant as president, and one Charles Porter, as cashier, of the Citizens Bank of Festus, Festus, Missouri, an insured bank, were indicted jointly in an indictment containing three counts, charged with violation of the statute supra. The first count alleged that the defendants made or caused to be made a false entry in a report to the Federal Deposit Insurance Corporation of the condition of the Festus bank as of the close of business on June 30, 1937, in that they reported that the demand deposits in the bank at that time were in the sum of $205,574.02 whereas the correct sum was $295,215.85, more or less. Counts 2 and 3 alleged that similar false entries were made in like reports for December 31, 1937, and June 30, 1938, respectively. The indictment charged that such false entries were made with intent to injure the bank and to deceive its officers, the Federal Deposit Insurance Corporation and its agents and examiners.

The defendant Porter pleaded guilty. The appellant, after one mistrial, was tried, convicted and sentenced on all three counts. On this appeal from such sentence the appellant contends that the court erred (1) in the admission of evidence, (2) in instructing the jury, (3) in overruling the appellant's motion for a directed verdict, and (4) that he was deprived of a fair trial by failure of a juror to disclose on voir dire that he had during the same year sat as a juror in a criminal proceeding against appellant in a state court of Missouri.

The evidence disclosed without dispute that the reports involved in the indictment were prepared and signed by Porter, the cashier of the bank, after which they were presented to and signed by the appellant in his capacity as a director of the bank. It is apparent that the immediate purpose of such a false entry in the reports might be to conceal and cover up a shortage in the funds of the bank. Under the statute and the charge made in the indictment, and in the situation thus presented, the burden was upon the government to establish beyond a reasonable doubt not only that the entries were false as charged and that the appellant made or caused them to be made, but also that (1) he had knowledge of their falsity and (2) that he thereby intended either to injure the bank or to deceive its officers or the Federal Deposit Insurance Corporation or its officers, agents or examiners.

In outline the evidence on behalf of the government tended to show that appellant was wealthy. He was president of the Festus bank from 1922 to September, 1938. For several years during this period he was presiding judge of the county court, president of the school board, commissioner and treasurer of the Festus Special Road District, disbursing officer of the Civil Works Administration, and secretary-treasurer of the Festus Mercantile Company. The accounts of these various institutions were carried in the bank.

From 1926 until 1938 there was a shortage of various amounts in the assets of the bank. During the period covered by the three reports in question these shortages varied from $89,000 to $112,000. The shortages were due in large part to the fact that appellant removed or embezzled bonds or cash from the assets of the bank and with the aid of Porter concealed the shortages from the officers of the bank and from the Federal Deposit Insurance Corporation and its officers. Appellant and Porter continually discussed this situation. One of the devices used to conceal such deficits was to withdraw depositors' ledger sheets from the loose-leaf ledger in sufficient amounts to cause the resources and liabilities of the bank to appear to balance on the ledger and in the reports of the condition of the bank. By his plea of not guilty and in his testimony appellant denied both the withdrawal of assets and knowledge of the devices for concealing them employed by Porter.

The appellant complains of two items of evidence introduced by the government over his objections and exceptions. The first relates to a transaction in Festus School District bonds, and the second to a transaction occurring at window No. 3 in the bank on January 10, 1936.

The evidence relating to school bonds, the admission of which is complained of, is to the effect that in 1924 the Festus School District of which appellant was president issued bonds in the amount of $50,000. In 1933 the school board decided to refinance $35,000 of these bonds still outstanding. The holder of $10,000 of the 1924 bonds refused to exchange them for bonds of the new issue. The appellant kept the refused bonds. In 1935 the holder of the $10,000 of 1924 bonds decided to exchange them for the new bonds. Appellant made the exchange and procured from the treasurer of the school district a certificate of cancellation of the old bonds, but instead of destroying the old void bonds appellant carried them in the bank as an asset of the bank until 1938, during which period two of the reports listed in the indictment were made.

The other transaction referred to occurred in January, 1936. The bank was being examined by the examiners of the Federal Deposit Insurance Corporation when they discovered a shortage of $6,200 at window No. 3 resulting from accumulated cash withdrawals by appellant. The examiners detected Porter writing three debit tickets to cover the shortage, one for $2,500 against the Festus Mercantile Company, one for $3,400 against the Festus Special Road District, and one for $300 against appellant's payroll account, all three of which accounts were controlled by appellant. Although no charges against these accounts in fact existed, Porter represented to the examiners that they were proper charges. After the examiners had gone Porter called appellant at his home and explained the situation. The next morning appellant saw the examiners and falsely represented that the shortage in reality consisted of three cash items the security for which was held locked in his desk. Later he wrote a letter to the examiner making the same explanation and admitting that it was an irregularity and saying that "no such items will occur again." The shortage was made whole within a few days.

The evidence of these two transactions was objected to on the ground that it was immaterial and irrelevant; that it did not tend to prove or disprove any issue on trial; that by insinuation it tended to charge appellant with crimes not contained in the allegations of the indictment; that it does not tend to prove motive or intent; that it does not tend to prove similar crimes; and that it was prejudicial.

The general rule is that a crime can not be established by evidence of other distinct crimes not charged in the indictment. But where intent and knowledge are essential elements of the offense charged, evidence of transactions so connected with the specific offense charged that it tends to show criminal intent or guilty knowledge is admissible. Coffin v. United States, 162 U.S. 664, 673, 16 S.Ct. 943, 40 L.Ed. 1109; Moore v. United States, 150 U.S. 57, 14 S.Ct. 26, 37 L.Ed. 996; Wood v. United States, 16 Pet. 342, 41 U.S. 342, 10 L.Ed. 987; Strom v. United States, 6 Cir., 12 F.2d 233, 234; Boone v. United States, 8 Cir., 257 F. 963, 966, 967; Moffatt v. United States, 8 Cir., 232 F. 522, 533; Galbreath v. United States, 6 Cir., 257 F. 648, 658; Wolfson v. United States, 5 Cir., 101 F. 430, 433, 434; Dorsey v. United States, 8 Cir., 101 F. 746, 755, certiorari denied 178 U.S. 613, 20 S.Ct. 1030, 44 L.Ed. 1216.

This was the second trial of the case. Counsel at the beginning were familiar with each other's theories and the nature of the government's evidence to support the issues. The appellant testified in his own behalf denying knowledge of the shortages in the bank, of his cooperation with Porter in concealing them, and of the falsity of the entries on the reports when he signed them. This evidence of the bond transactions, of the $6,200 shortage at window No. 3, and the use of the debit tickets, together with the conduct of appellant in his apparent effort to deceive the examiners, was admissible as tending to show intent and knowledge. The bond transaction was so intimately connected with the shortage at the times when two of the reports were made that it showed knowledge, and the transaction at window No. 3 also showed knowledge of the existing shortage less than two years earlier.

On cross-examination appellant was asked: "Q. Now, in 1938, when this blowup in this bank occurred, the accounts of the Special Road District were audited, weren't they?" The question was objected to as immaterial. Over such objection the witness answered that they were. He further answered that a shortage in his account as treasurer of the district was found, and the assistant district attorney inquired whether the amount was $6,200, apparently attempting to identify it with the $6,200 shortage at window No. 3 referred to supra....