Flower v. United States

• Decision Date: 02 June 1902
• Docket Number: 1,153.
• Citation: 116 F. 241
• Parties: FLOWER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

116 F. 241

FLOWER v. UNITED STATES.

No. 1,153.

United States Court of Appeals, Fifth Circuit.

June 2, 1902

Lionel Adams, for plaintiff in error.

W. W Howe, for the United States.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

Samuel Flower, the plaintiff in error, was indicted on May 20, 1901 for that, being paying teller of the Hibernia National Bank he did on May 8, 1901, embezzle $36,000 of its moneys and funds, and on April 15th of the same year did abstract, take carry, and send away $36,000 of other moneys and funds belonging to said bank. While, in conformity to strict pleading, the money charged to have been abstracted is described as 'other' than that embezzled, both counts refer to, and are intended to cover, one and the same transaction. Flower in due course having been tried, convicted of embezzlement, and sentenced to be imprisoned in the United States penitentiary at Atlanta, Ga., thereafter, upon his application for a writ of error, was allowed to have his case reviewed before this court, and a supersedeas and stay of proceedings granted pending the determination of the same. The contention of the plaintiff in error is that, independent of his confession, there was no satisfactory or sufficient proof at the trial to establish the corpus delicti, and that, therefore, substantial error was committed, to his great damage, in the action of the court refusing a peremptory instruction directing his acquittal. The true basis of this contention appears somewhat obscurely in the requested charge the refusal of which is complained of in the second assignment of error. The charge requested is taken almost literally from the text of Wharton's work on Criminal Evidence (section 325), where the language is:

'A corpus delicti, the proof of which is essential to sustain a conviction, consists of a criminal act, and to sustain a conviction there must be proof of the defendant's guilty agency in the production of such act. With respect to the former of these, it is the established rule that the facts which are the basis of the corpus delicti form a distinct ingredient in the case of the prosecution, to be established beyond a reasonable doubt.'

In the requested charge the words of Wharton's text, 'respect to the former of these,' are substituted by the words, 'reference to the commission of the criminal act,' making the requested charge in full read as follows:

'The corpus delicti, the proof of which is essential to sustain a conviction, consists of a criminal act, and to sustain a conviction there must be proof of the defendant's guilty agency in the production of such act. With reference to the commission of the criminal act, it is the established rule that the facts which are the basis of the corpus delicti form a distinct ingredient in the case of the prosecution, to be established beyond a reasonable doubt.'

Counsel for the plaintiff error contends that the body of the crime in this case which it is necessary to prove is that the embezzlement itself had been committed by some one within three years prior to the finding of the indictment, and that both of these elements of the corpus delicti in this case must be shown by proof independent of the extra judicial confessions of the accused, and beyond a reasonable doubt. As opposed to this view, the trial court appears to have adopted the doctrine that the law in this country is that a defendant in a criminal case cannot be convicted upon his confession, unless that confession is corroborated in a material and substantial manner so far as concerns the fact that the offense in question has actually been committed by some one; and unless the jury, after being satisfied that the confession is corroborated in the manner just stated, and upon considering the entire case, including the confession, is satisfied beyond a reasonable doubt that the offense was committed, and that the defendant committed it, the jury cannot convict; and proceeded to charge the jury substantially that this criminal charge involves the propositions (1) that the embezzlement has been committed by some one, and (2) that the defendant (the plaintiff in error) is the person who committed crime, and then said:

'The fact that a crime was committed is called by the lawyers the 'corpus delicti.' In this case the corpus delicti is that some one embezzled * * * the funds of the bank, and it is for you to decide whether, outside of the confessions of the defendant, you find material and substantial corroboration of his confessions as to the fact that some one embezzled * * * the funds of the bank. You are not to make the mistake of supposing that you are required to find outside of the confessions full proof that some one embezzled * * * the funds of the bank, nor are you required to find that the government has proven the defendant guilty of the charges against him outside of his confessions and without taking his confessions into consideration. All that is required on this branch of the case, as I have said before, is for you to find that outside of the confessions, there is substantial and material corroboration of the confessions as to the question that some one embezzled * * * the funds of the bank. If you find that there is such corroboration outside of the confessions, then you will consider the confessions, together with all the other evidence in the case; and if, upon the consideration of the whole evidence, which would then include the confessions, you are satisfied beyond a reasonable doubt that the defendant is guilty, you are then bound to so find; while, on the contrary, if a reasonable doubt of his guilt then arises in your minds, you should then acquit him. On the question whether the confessions are corroborated as to the corpus delicti,-- that is, as to whether some one committed the offense charged,-- as well as on all other points in the case, you are to recollect and carefully consider all of the evidence.'

All of the evidence substantially has been brought up by the bill of exceptions; and it appears therefrom that on the 8th day of May, 1901, the plaintiff in error was the paying teller of the Hibernia National Bank, in the city of New Orleans, and that on that day a duly appointed and commissioned examiner of national banks of this district was in the city for the purpose and engaged in the work of examining the national banks located here; that about the hour of 2:30 p.m. Mr. Flower asked one F. M. Folger, who was on duty that day at the Hibernia Bank as a special bank detective and guard, to see if he could get large denominations of bills for bills of small denominations from the New Orleans National Bank to the amount of $40,000. On the presentation of this request by Folger, the proper authorities of the New Orleans National Bank stated that they could not do so, which was duly reported to Mr. Flower by Mr. Folger. Mr. Flower then asked Mr. Folger to see the Louisiana National Bank, stating that he desired to exchange a sealed package of silver certificates amounting to $40,000. Folger saw the paying teller of the Louisiana National Bank, who said he could make the exchange in clearing house certificates. Upon that being reported to Mr. Flower, he gave Folger a sealed package purporting to contain $40,000. It was a government package, and labeled 4,000 ten-dollar bills,-- $40,000. Mr. Folger took this package to the Louisiana National Bank, and in exchange therefor obtained eight clearing house certificates, of the denomination of $5,000 each, making a total of $40,000. This happened between 2:30 o'clock and 3 o'clock p.m., before the banks closed, on the 8th day of May, 1901. At 3:31 p.m. that day the bank examiner started an examination of the Hibernia National Bank, and on his examination of the department of the paying teller (Mr. Flower's department) found that Mr. Flower had all the cash on hand to correspond with the general book of the bank. In this amount of cash on hand was included $55,000 of what is called clearing house certificates, which were treated and accepted as cash, and included the eight certificates procured by Folger. The examination was thorough, and in all respects satisfactory to the examiner. The same examiner had made semiannual examinations of this bank and of this paying teller's department from the time of his appointment, in 1898, having made in all, five examinations previously to this one, made on May 8, 1901, and on each occasion had found the cash in the hands of the paying teller to correspond with the general book of the bank, and the condition of the paying teller's department to be in all respects satisfactory. Some time between 3 and 4 o'clock in the afternoon of that day the witness Richard M. O'Brien found at his house, when he returned home, the following letter:

'Hibernia National Bank.

'New Orleans, La., . . ., 190 . . . .

'Mr. R. M. O' Brien-- Dear Sir: This request will appear to you preposterous, but to me it is a matter of life itself. I am in an awful position. I have speculated with the bank's money to the extent of $36,000, but can recover a part or all in time. The bank examiner will be here this evening at 3 o'clock, and of course I will be caught up with. The request that I make to you is that if I could only have the use of that much till tomorrow morning I would be absolutely safe, and could explain more fully to you about the whole matter and return to you the amount. My dear little wife went over to the Pass this morning to ask Capt. Menge to do this for me; he is a friend of my family. But when I let her go this morning I did not expect the examiner so soon, so I just telegraphed her that it was too late, as she would not be in time. My dear sir, just the use

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