Brown v. United States

• Decision Date: 01 August 1905
• Docket Number: 1,136.
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

142 F. 1

BROWN v. UNITED STATES.

No. 1,136.

United States Court of Appeals, Seventh Circuit.

August 1, 1905

John M Van Fleet, for plaintiff in error.

Jesse M. La Follette, for the United States.

The plaintiff in error was convicted and sentenced for violations of section 5206, Rev. St. U.S. (U.S. Comp. St. 1901, p 3496), under several counts of the indictment charging him with aiding and abetting one Justus L. Brodrick, president of the bank, in the willful and unlawful misapplication of the moneys, funds, and credits of the Indiana National Bank, of Elkhart, Ind.; also under one count for aiding and abetting said Brodrick in the unlawful abstraction of certain promissory notes, the property of said bank. The indictment contained sixty-seven counts, but nine were withdrawn from the jury. Upon six counts the jury returned a verdict of acquittal, and upon the remaining counts which were submitted returned a verdict of guilty. The court arrested judgment upon 18 of the last-mentioned counts, and entered judgment upon the verdict under 34 counts; the sentence and judgment for eight years' imprisonment being upon each count 'concurrent and not cumulative.' Of the counts so retained and included in the judgment, 18 charge specific 'misapplications of the funds of the bank to the use of the National Manufacturing Company, and 15 charge misapplications for the use of the Consolidated Paper & Bag Company. One (the 34th) charges the abstraction and conversion of notes belonging to the bank to the use of the last-mentioned corporation. In each of the counts for misapplication of funds it is charged in apt terms that the president of the bank misapplied the funds of the bank, then under his control, and feloniously converted them to the use of the corporation named; that such corporation was then insolvent, as he well knew; that the plaintiff in error feloniously aided and abetted such misapplication. The bill of exceptions states generally that 'evidence was given to prove' that 'every material allegation of the indictment was true,' and further specifies, among other items of evidence, 'that the defendant, Brown, and his wife, at the time of the transactions alleged in the indictment, owned almost all of the stock of the National Manufacturing Company'; that Brown 'was the president and general manager' thereof and the 'exclusive manager'; and that, while Brown 'had no interest in the said Consolidated Paper Company,' he was at all the times mentioned 'its president and general manager' under a salary.

The assignments of error refer to rulings of the trial court in the admission of evidence, refusals to give instructions requested on behalf of the defendant, and to instructions which were given. These assignments and the record there upon are set forth in the opinion, in so far as they are mentioned in the argument or briefs of counsel, or are deemed material.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge.

The testimony upon which the verdict and judgment rest is not preserved in the bill of exceptions, and the recitals bearing upon the various assignments of error are quite meager leaving much to be inferred. But the contentions on behalf of the plaintiff in error are clearly stated in the briefs, and we are satisfied that the record is sufficient for review of the assignments upon the admission of evidence in the light most favorable to the accused.

I. Exceptions for admission of testimony. The first eight assignments of error are for the reception of testimony over objections in the several instances which appear by the bill of exceptions, and in the course of examination of the witnesses mentioned, namely: (1) Witness John Krau, Jr.; (2) witness E. R. Kerstetter; (3) (4) (5) (6) witness James M McIntosh; (7) witness D. C. Thomas; and (8) witness Noble C. Butler. The contentions of error in these rulings and refusals to instruct the jury as requested on behalf of the plaintiff in error, in reference to testimony so received, appear to be the chief reliance for reversal of the judgment.

Preliminary to the discussion of the assignments in detail, a distinguishing feature of the case at bar must be borne in mind in the two-fold character of the issues. The indictment charges Brown with aiding and abetting the alleged misapplications and abstractions of bank funds by Brodrick, the president of the bank, and this charge can be established only upon proof that Brodrick committed the primary offense. Both commission and criminal intent upon the part of Brodrick are thus made the fundamental issue, and are provable primarily without reference to connection with Brown, or the line of evidence which may establish the further issue against him. The intent of Brodrick in the primary acts must be ascertained from the facts and circumstances, and the general test of the relevancy of circumstances to that end is their logical connection with the primary offense charged against Brodrick. Thus the issue thereupon is not within the general rule which would require the presence or knowledge of the accused, Brown, to make such circumstances admissible.

1. The first assignment raises objection to the testimony on the part of one Krau, a witness for the government. He was a bookkeeper in the Indiana National Bank, and stated that the president of the bank came to his house about a week after the bank closed and 'had a talk with him about the books of the bank. ' Upon the further inquiry, 'What did he say?' the record states:

'The defendant objected, because this was a conversation subsequent to the time of the closing of the bank and subsequent to his connection with the bank, and that it was hearsay and not binding upon the defendant for any purpose whatever. The court overruled the defendant's objection, to which ruling he excepted. The witness answered that Brodrick came in and wanted to know what was going on down town, and said that the bank failure was a bad one; that he guessed they found the books all right, but might criticise the notes; that he tried to do everything all right, and said to the witness that he had better not talk too much about the pass books.'

It is not stated what other testimony, if any, this witness gave nor in what connection, other than above mentioned, the testimony was called for. So that the question of its bearing rests alone on the circumstance and language of the conversation. If it were elicited on the trial of Brodrick, the admissibility in any view, as against him, would be undoubted. Under the issue as to commission of the primary offense by Brodrick, the fact of the interview with the bookkeeper would be admissible, as above stated, as a circumstance tending to show the intent of Brodrick, however slight its weight. But it is not so clear that the remarks of Brodrick were alike admissible by way of circumstantial evidence as res gestae or otherwise. The objection to the introduction appears to have rested on the special rule applied in conspiracy cases-- that the acts and declarations of one conspirator in the court of the conspiracy are admissible against all, being considered as the act and declaration of all who are engaged in the common purpose-- and the limitations of that rule (vide Logan v. United States, 144 U.S. 263, 300, 12 Sup.Ct. 617, 36 L.Ed. 429) to declarations made before the consummation of the offense. It was plainly not admissible thereunder, if such rule were in any sense applicable under this indictment; nor does it appear that the testimony was tendered or received as within the meaning of that rule, nor in what view it was considered material or relevant. If the conversation as received amounted to a confession or admission of guilt or criminal intent on the part of Brodrick, it is probable that the trial court would have stricken it out, if requested to do so, in conformity with the general doctrine in respect of such evidence, upheld in Kirby v. United States, 174 U.S. 47, 54, 56, 19 Sup.Ct. 574, 43 L.Ed. 890, and the authorities there cited. We are satisfied, however, that neither incident nor remark bears such interpretation. The only injurious effects mentioned in the argument of counsel, are (1) that 'it showed that the president of the bank' was then 'trying to tamper with a witness,' and (2 ) that his statement 'that 'the bank failure was a bad one' was purely hearsay,' and 'very damaging to the defendant before the jury. ' In reference to the suggestion of Brodrick's attempt to tamper with a witness, nothing appears in the language to justify such interpretation; and, if assumed to bear such meaning, Brown was in no sense involved in the attempt, and the testimony was harmless as to him. The remark upon the bank failure as 'a bad one' was hearsay, if considered apart from the incident of the meeting, but it is obvious from the whole record that the fact of such failure abundantly appeared by evidence not in question, so that the other suggestion is without force. It does not appear that the language or its possible interpretation were brought to the attention of the trial court at any time after the original objection to the question; and with the other testimony establishing the commission of the primary offense by Brodrick-- which must be presumed under the recitals in the bill of exceptions-- it is not deemed necessary to determine whether the language referred to was admissible in any view of the issues. If irrelevant, we are clearly of opinion that it was in no sense misleading in its tendency, and cannot be treated as harmful to the plaintiff in error. So, upon the assumption that the testimony was erroneously received, in the absence of prejudice, that is not sufficient reason for reversal. Mining Co. v. Taylor, 100 U.S. 37,...