Dunlap v. United States

• Decision Date: 29 March 1934
• Docket Number: No. 5100.,5100.
• Citation: 70 F.2d 35
• Parties: DUNLAP v. UNITED STATES
• Court: U.S. Court of Appeals — Seventh Circuit

70 F.2d 35 (1934)

DUNLAP v. UNITED STATES

No. 5100.

Circuit Court of Appeals, Seventh Circuit.

March 29, 1934.

W. St. John Wines, of Springfield, Ill., for appellant.

Frank K. Lemon, U. S. Atty., and Marks Alexander, Asst. U. S. Atty., both of Springfield, Ill.

Before EVANS and SPARKS, Circuit Judges, and WILKERSON, District Judge.

SPARKS, Circuit Judge.

Appellant, the president of the Ayers National Bank of Jacksonville, Illinois, and William Goebel, the cashier of the same bank, were indicted for making false entries in a book of the bank in violation of section 5209 of the Revised Statutes, as amended (12 USCA § 592). This section provides that "Any officer, director, agent, or employee of any Federal reserve bank, or of any member bank * * * who makes any false entry in any book, report, or statement of such * * * bank with intent in any case to injure or defraud such * * * bank * * * or to deceive any officer of such * * * bank, or the Comptroller of the Currency, or any agent or examiner appointed to examine the affairs of such * * * bank * * * shall be deemed guilty of a misdemeanor, and upon conviction there of * * * shall be fined not more than $5,000 or shall be imprisoned for not more than five years, or both. * * *" Both parties were found guilty on four of the thirteen counts, including the thirteenth, a conspiracy count. A nolle prosequi was entered on one of the other counts, and as to the remaining counts, the court entered a directed verdict of not guilty.

The counts on which a conviction was had involved entries regarding the payment of interest on a certain note for $30,000 made by one Oscar Nelson, September 29, 1924, at which time he was the treasurer of the state of Illinois. The note was a demand one, payable to the bank, with interest at five per cent, signed by one D. M. Flynn to whom a check for $30,000 was made payable, signed by Andrew Russel, agent, who was a vice-president of the bank. Flynn had endorsed the check to Nelson. The record discloses that Nelson paid $5,000 on the principal on July 17, 1925, and it is not denied that the note was executed for his benefit or that the obligation was in fact his. Counsel for appellant admitted in his opening statement that this interest had never in fact been paid, claiming that the bank had a right to waive the interest on the note in view of the fact that at the time the bank was a depository for funds of the state, large amounts of which were kept there without payment of interest by the bank to the state.

Before this court appellant did not question the correctness of the conviction of Goebel, but argued that the evidence introduced did not warrant appellant's conviction. He assigns as error generally the admission of evidence and the exclusion of other evidence, without, however, specifying the evidence at fault, or showing wherein the error lay. We have only his statement of contested issues and errors with references to the transcript of record, as given in his brief, upon which to consider his contentions.

The principal error has to do with the fact of insufficient proof of the corpus delicti. Appellant argues that apart from certain admissions of his co-defendant, there was no proof of the actual falsity of the entries with which they were charged. Upon the trial both defendants took exception to the introduction of these admissions in evidence before other proof of the alleged crime. There was no error in this, however, inasmuch as the order in which evidence is to be received is largely within the discretion of the trial court, and no judgment will be reversed because of the order in which evidence was introduced unless there was manifest abuse of such discretion. People v. Wolf, 334 Ill. 218, 165 N. E. 619; People v. Rewland, 335 Ill. 432, 167 N. E. 10. While it is true that the principal evidence relied upon by the Government lay in the admissions of the co-defendant and also of counsel for appellant that no interest was in fact ever paid, there is enough other evidence aside from that of the parties to justify the court in allowing the case to go to the jury. Oscar Nelson, the real maker of the note, testified that he had received the money for the loan of which the note in question had been given, and that he had never paid any interest on it, nor could he recall that any demand had ever been made upon him for payment of either the principal or the interest. He testified that he had paid the $5,000 which was endorsed on the back of the note as a payment on the principal. We think that the statement of the party who actually borrowed the money, that he never paid any interest on his loan, is sufficient direct evidence of the falsity of the entries as to payment of that interest, to permit the government to introduce the admissions of the parties charged with falsifying the entries, as corroborative evidence. In the case of...