Frantz v. United States, 6245.

• Decision Date: 10 January 1933
• Docket Number: No. 6245.,6245.
• Citation: 62 F.2d 737
• Parties: FRANTZ v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

62 F.2d 737 (1933)

FRANTZ v. UNITED STATES.

No. 6245.

Circuit Court of Appeals, Sixth Circuit.

January 10, 1933.

W. A. Collins, of Bay City, Mich. (Collins & Thompson, of Bay City, Mich., on the brief), for appellant.

O. J. Manary, of Bay City, Mich. (Gregory H. Frederick, of Detroit, Mich., on the brief), for the United States.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Defendant was indicted upon twenty-four counts, twelve of which charged him with embezzling funds of the First National Bank of Bay City, Mich., and twelve with having made false entries in the bank's books. He was acquitted of the charges of embezzlement and convicted upon the counts charging the making of false entries. There are a great many assignments of error, only a few of which need be noticed.

The first assignment of error urged is that the court, upon its own motion, excused from the panel of petit jurors all those who had been summoned from Bay City. We see no error in this action. The defendant had been tried once before upon the indictment, and the jury had disagreed. The purpose of the court was to obtain for the second trial a jury which was beyond all suspicion of prejudice. Under section 277 of the Judicial Code (28 USCA § 413) the court had power to require that jurors be returned only "from such parts of the district * * * as to be most favorable to an impartial trial." It was thus within the power of the court to require that the original return of petit jurors should include those from all counties in the division excepting one Jarl v. United States, 19 F. (2d) 891 (C. C. A. 8), and, where a panel had already been returned for the trial of various defendants, we think that it was still within the discretion of the trial judge to excuse from service in a particular case those jurors who resided in any one county. There is no claim that this discretion was abused, and we are unable to see that prejudice thereby resulted. Cf. Lewis v. United States, 279 U. S. 63, 49 S. Ct. 257, 73 L. Ed. 615; Ruthenberg v. United States, 245 U. S. 480, 38 S. Ct. 168, 62 L. Ed. 414; Remus v. United States, 291 F. 501 (C. C. A. 6).

The indictment was based upon an alleged violation of Revised Statutes § 5209, as amended, 12 USCA § 592, providing, inter alia, for the punishment of one "who makes any false entry in any book, report, or statement of such Federal reserve bank or member bank, with intent in any case to injure or defraud such Federal reserve bank or member bank." Twelve instances of such alleged false entries were made the bases of twelve separate counts of the indictment, and at the trial the court permitted the proof of other instances, not specified in the indictment, as tending to establish intent. In so far as these other entries were traced to or shown to be connected with the defendant there was no error in admitting this evidence. Wolfson v. United States, 101 F. 430 (C. C. A. 5); Galbreath v. United States, 257 F. 648, 658 (C. C. A. 6); Holt v. United States, 42 F.(2d) 103 (C. C. A. 6).

In addition to testimony upon this subject, however, the court admitted as documentary evidence a tabulation prepared by the accountant who examined the books of the bank, setting forth in detail not only the instances of embezzlement and false entry which he testified he had traced to the defendant, but also innumerable other instances in which he testified interest paid to the bank had failed to be reflected in its accounts but which could not be traced to the defendant. The books of the bank having been made available to the defendant, the result of the examination might doubtless be proved by the person who made it in so far as the testimony was relevant to the purpose for which it was offered (Burton v. Driggs, 20 Wall. 125, 136, 22 L. Ed. 299; Galbreath v. United States, supra); but, where this purpose was solely the proof of fraudulent intent, the relevancy of evidence of unconnected items of loss is not apparent. In the ordinary case, also, we think that it is inadvisable to permit only a part of the evidence to be introduced in transcribed or documentary form. This is a matter which is largely within the sound discretion of the trial judge, but the tendency might be that such evidence would thereby be unduly emphasized — that the jury would give more weight to that which was thus reduced to the form of a written report, and as such was submitted to them, than would be given to purely verbal testimony to the same effect. Perhaps, since there must be a new trial on the ground now to be noticed, ...