Cummins v. United States

• Decision Date: 16 May 1916
• Docket Number: 4530.
• Citation: 232 F. 844
• Parties: CUMMINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F. 844

CUMMINS v. UNITED STATES.

No. 4530.

United States Court of Appeals, Eighth Circuit.

May 16, 1916

George W. Murphy, E. L. McHaney, and Wallace Townsend, all of Little Rock, Ark., for plaintiff in error.

W. H Martin, U.S. Atty., of Hot Springs, Ark., and W. H. Rector Asst. U.S. Atty., of Little Rock, Ark.

Before HOOK and SMITH, Circuit Judges, and REED, District Judge.

HOOK Circuit Judge.

Cummins was convicted of aiding and abetting a clerk of a national bank to violate section 5209, Rev. Stat. (Comp. St. 1913 Sec. 9772), by abstracting therefrom without payment certain drafts and attached bills of lading with intent to injure and defraud the bank and to deceive its officers and any agent appointed to examine its affairs. The section so far as applicable is as follows:

'Every * * * clerk * * * of any (national banking) association who * * * abstracts * * * any of the * * * credits of the association * * * with intent * * * to injure or defraud the association * * * or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any * * * clerk * * * in any violation of this section, shall be deemed guilty of a misdemeanor. * * * '

This statute expressly makes the intent of the bank clerk to injure or defraud or deceive and the like intent of the person aiding or abetting him an essential element of the offense. Agnew v. United States, 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624; McKnight v. United States, 49 C.C.A. 594, 111 F. 735; Id., 54 C.C.A. 358, 115 F. 972. The accused was the cashier and bookkeeper of a commission company which had dealings with the bank. His defense, on which evidence was offered and received, was that he was following in good faith the instructions of his superiors in the commission company in a course of business conduct that previously existed and of which he believed the bank was cognizant; also that he had no intent to injure or defraud the bank or to deceive any one in the examination of its affairs. When the accused was testifying in his own behalf his counsel asked him:

'What intent, if any, had you to injure or defraud the bank or to deceive its officers or any one examining into its affairs?'

The question was excluded upon objection by counsel for the government. The rule long settled in this country, almost without exception, is that, whenever the motive or intent of an act or the conduct of a person is material he may testify directly what it was. He may be asked whether he had the motive or intent in question. It is contended that another question of substantially the same character was allowed and answered, but it is doubtful that it was of the same full import.

By several requests variously phrased the accused sought instructions setting forth his defense as above noted and that if the jury believed it they should find him not guilty; also that in order to convict him it was necessary that the evidence show that the acts of the bank clerk were with the intent charged and that the aiding and abetting therein by the accused were with like intent. The trial court refused the requests, and instead charged the jury as follows:

'In determining the intention of the defendant so far as the bank is concerned, it is not necessary that the government should show that he expected to be benefited by it, or that he had any intention of his own to defraud the bank. The law presumes that every person intends to do that which is the natural result of his actions. If a man obtains property or securities from any person by means of a worthless check, he knowing that the check was worthless, because he had no money in the bank on which it was drawn, the fact that he intends to make it good at a future day and put the money in there to meet it or take it up, would not relieve him of

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