Flickinger v. United States

• Decision Date: 05 December 1906
• Docket Number: 1,556.
• Citation: 150 F. 1
• Parties: FLICKINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

150 F. 1

FLICKINGER v. UNITED STATES.

No. 1,556.

United States Court of Appeals, Sixth Circuit.

December 5, 1906

T. E Powell, for plaintiff in error.

John J Sullivan, for the United States.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

The plaintiff in error, Edward Flickinger, was convicted of aiding and abetting Otho L. Hays, the president of the Galion National Bank, of Galion, Ohio, in certain violations of section 5209 of the Revised Statutes (U.S. Comp. St. 1901, p 3497). The indictment contained 52 counts, charging Hays as principal, and Flickinger as aider and abettor, with willfully misapplying the moneys, funds, and credits of the bank by certain methods described, and with unlawfully issuing certain certificates of deposit and bills of exchange without authority from the directors, all with intent to injure and defraud the bank. They were both convicted on six counts, Nos. 38, 40, 41, 42, 43, and 50, each charging a willful misapplication of the moneys, funds, and credits of the bank, with intent to injure and defraud it; the first five by discounting and passing to the credit of the Flickinger Wheel Company, at that time insolvent, certain worthless, fictitious, and fraudulent drafts, drawn by the Flickinger Wheel Company on the Vehicle Wheel Club, and accepted by the latter, and the last by discounting and passing to the credit of the Flickinger Wheel Company certain worthless and unsecured accommodation notes, given it by the Galion Wagon & Gear Company, both companies being then wholly insolvent. A motion for a new trial being overruled, the defendants were each ordered to be imprisoned for 7 1/2 years in the penitentiary on each of the six counts; the sentence to be concurrent and not cumulative. The defendant Hays is now undergoing the punishment imposed by this sentence; the defendant Flickinger alone having prosecuted error.

The rule is well established that where a judgment of guilty is based upon several counts and the sentence is concurrent, as in this case, the judgment will be sustained if any one of the counts supporting it is found good. Claassen v. U.S., 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966. It is not our purpose, however, to select some one of these six counts, and base out affirmance upon it alone, for we think them all good. The court below overruled a demurrer to the indictment and each count thereof. It is contended it erred because the counts under consideration do not describe a willful misapplication of the funds of the bank within the inhibition of the statute, and, more particularly, do not allege that the defendant Hays did the acts charged against him without authority from the directors. The five counts charging a willful misapplication through the discount of the Vehicle Wheel Club drafts allege that the defendant Hays was, at the time the transaction took place, the president of the Galion National Bank, having general superintendence of its affairs, and that he willfully misapplied the moneys, funds, and credits of the bank, then under his control and custody as president, with intent to convert the same to the use and benefit of the Flickinger Wheel Company, and with intent to injure and defraud the bank, by discounting three drafts, one for $9,000, one for $7,500, and one for $7,500, aggregating in amount $24,000, which bear the acceptance of the Vehicle Wheel Club, by Edward Flickinger, president (describing them and giving a copy of one, the others not being obtainable)--

'Which said drafts were then and there, when so discounted, worthless, unsecured, false, and fictitious drafts and obligations, and had been drawn by the said the Flickinger Wheel Company upon the said Vehicle Club, at a time when the said Vehicle Wheel Club was not indebted in the sum of $24,000, nor in any other sum approximating $24,000, to the said the Flickinger Wheel Company, nor was there any consideration of any kind or value moving from the said the Flickinger Wheel Company to the said Vehicle Wheel Club, nor to any other person, for the said acceptance of the said drafts, but the same were false, fraudulent, and unauthorized; the said acceptance being indorsed upon said drafts by the said E. Flickinger, otherwise known as Edward Flickinger, who was then and there also the president of the said the Flickinger Wheel Company; the drawing and accepting of said drafts being done, and being caused to be done, by the said E. Flickinger, otherwise known as Edward Flickinger, and the said Otho L. Hays, president as aforesaid, acting together, the said Otho L. Hays being then and there the treasurer of the said the Flickinger Wheel Company, and both the making and accepting of said drafts being but a sham and a device to create a worthless and fictitious obligation, all of which he, the said Otho L. Hays, president as aforesaid, then and there well knew; the said the Flickinger Wheel Company being then and there wholly insolvent, as he, the said Otho L. Hays, president as aforesaid, then and there well knew.'

The indictment then charges that the drafts were discounted by Hays by deducting the amount of interest and discount, and causing the Flickinger Wheel Company to be credited on the books with the balance of $23,469.28, which amount was afterwards withdrawn by the Flickinger Wheel Company and converted to its use. The count closes by charging that Flickinger, with intent to injure and defraud the bank, knowingly and unlawfully aided and abetted Hays in this misapplication. The other counts charging willful misapplication through the discount of other Vehicle Wheel Club drafts are similar in form.

The fiftieth count charges that Hays, being then the president of the bank and having general superintendence of its affairs, did willfully misapply its moneys, funds, and credits, then under his control and custody as president, with intent to convert the same to the use and benefit of the Flickinger Wheel company, and with the further intent to injure and defraud the bank, by receiving and discounting 12 certain notes, aggregating $15,000, which are set out in detail--

'Which said notes were then and there, when so discounted, worthless, unsecured notes and obligations, the said the Flickinger Wheel Company and the said the Galion Wagon & Gear Company both being then and there wholly insolvent and entitled to no credit in said banking association, as he, the said Otho L. Hays, president as aforesaid, then and there well knew.'

It is then charged that these notes, aggregating $15,000, were discounted, and the balance, $14,419.50, was passed to the credit of the Flickinger Wheel Company, which withdrew the same from the bank and thus obtained the full use thereof, no part of it ever having been paid to the bank. The count closes by charging that Flickinger, with intent to injure and defraud the bank, knowingly and unlawfully aided and abetted Hays in this misapplication.

Section 5209 of the Revised Statutes provides that:

'Every president * * * of any association, who * * * willfully misapplies any of the moneys, funds or credits of the association, * * * with intent * * * to injure or defraud the association, * * * shall be guilty,' etc.

The statute does not make it necessary, in order to constitute an offense, for the president to make the willful misapplication 'without authority from the directors,' although there is that special provision with respect to the unlawful issue of any of the notes of the association, or of any certificates of deposit or bill of exchange, etc. In passing upon the demurrer, the court below said:

'Objection is made that there is no averment that Hays discounted this paper without the knowledge and consent of the board of directors. I do not think this averment necessary, and it would not be less criminal done with the knowledge and consent of the board of directors, if the defendants and the board of directors did it under the circumstances which the indictment avers existed in connection with the action of the defendants. It appears, from the averments of these counts, that the defendant Hays misapplied money and funds of the bank by discounting these notes.'

We concur in this view. The averments of these counts show, in each instance, a willful misapplication of the funds of the bank, for an unlawful purpose, with intent to injure and defraud the bank. The transaction in each case is described in detail, and the averments, covering every element of the crime, are full and clear. There could be no proper presumption that the directors, in the ordinary course of business, would consent to the discount by the president of worthless and fictitious paper, with intent to injure and defraud the bank, and therefore no necessity to insert in the indictment an averment to negative such authority. If, under any circumstances, the authority of the directors could validate such conduct on the part of the president, then, in that event, which we see no reason to anticipate, the rule laid down by this court in the McKnight Case would apply. It would be a matter of defense. McKnight v. U.S., 115 F. 972, 986, 54 C.C.A. 358.

But leaving the indictment, it is argued quite strenuously, first, that the verdict of guilty on the counts mentioned is not supported by the evidence; second, that the court erred in its charge to the jury; third, that the verdict of guilty on these counts cannot be sustained, because the jury brought in a verdict of not guilty on other counts covering the same transactions, so that the verdict is repugnant and inconsistent; and, finally, that no offense was consummated, because it appears that when the amounts obtained by the discount of the drafts and notes mentioned were passed to the credit of the ...