Hoss v. United States

• Decision Date: 12 April 1916
• Docket Number: 4087.
• Citation: 232 F. 328
• Parties: HOSS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F. 328

HOSS v. UNITED STATES.

No. 4087.

United States Court of Appeals, Eighth Circuit.

April 12, 1916

Benjamin F. Burwell, of Oklahoma City, Okl. (A. P. Crockett and Charles Edward Johnson, both of Oklahoma City, Okl., on the brief), for plaintiff in error.

Isaac D. Taylor, Asst. U.S. Atty., of Guthrie, Okl. (John A. Fain U.S. Atty., of Lawton, Okl., on the brief), for the United States.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

ADAMS Circuit Judge.

This was an indictment against Julius F. Rochau, Raymond H. Hoss and C. M. Hoss, for violating provisions of section 5209 of the Revised Statutes of the United States. There were five counts in the indictment, each charging Rochau, as cashier of the First National Bank of Fairfax, Okl., with drawing a certain specified bill of exchange, without the authority of the board of directors, and with the intent to defraud the bank, and Raymond H. Hoss and C. M. Hoss with aiding and abetting him, with like intent, in so doing.

Rochau fled, and has never been arrested or tried. Raymond H. Hoss and C. M. Hoss were duly apprehended, arraigned, entered pleas of not guilty, tried, convicted on each and all of the counts of the indictment, and sentenced--Raymond for a period of seven years, and C. M. Hoss for a period of five years in the United States penitentiary at Leavenworth, Kan. Both sued out a writ of error from this court, and the cause was docketed here. The writ of error as to Raymond H. Hoss was dismissed by him, and he then entered upon his term of imprisonment; but C. M. Hoss prosecutes the writ of error. He makes the following assignments of errors:

(1) The court erred in refusing to instruct the jury to find a verdict in his favor.

(2) The court erred in refusing to give two certain requested instructions to the jury.

(3) The court erred in admitting certain documents and papers in evidence over his objection.

There are some facts which are uncontradicted and certain, and these we state at the outset. The First National Bank of Fairfax, Okl., was organized as a national banking association in 1905, with a capital stock of $25,000. Later in 1909, this was increased to $50,000. Julius F. Rochau was originally made assistant cashier and director. Raymond H. Hoss was made cashier and director. Later, in 1908, Raymond H. Hoss resigned as cashier, and was then made vice president, and Rochau was then made cashier. Later Raymond H. Hoss resigned as vice president and director; Rochau still retaining his position as cashier. Raymond Hoss, although no officer, was afterwards a frequent visitor at the bank, and had free access to the books of the bank, frequently inspecting his own account and the account of the firm of Wismeyer, Moody & Hoss, of which he was a member. Rochau and Raymond Hoss resided in Fairfax, Osage county, Okl., which is in the Western judicial district of that state. C. M. Hoss was an uncle of Raymond Hoss, and resided in Tulsa county, near to the city of Tulsa, which is in the Eastern District of Oklahoma.

The bills of exchange counted on in the indictment were cashier's checks, in the usual form, drawn by Rochau, as cashier, and payable to the order of C. M. Hoss, and by him indorsed. The first count of the indictment charged the drawing of a bill of exchange on June 7, 1910, for the sum of $7,500, in the following words and figures:

'June 7, 1910.

'First National Bank of Fairfax:

'Pay to the order of C. M. Hoss $7,500.00, seven thousand five hundred and no/100 dollars

'Cashier's Check.

(Signed) J. F. Rochau, Cashier.'

The second count was based on a cashier's check, like that in the first count, except that it was dated June 17, 1910, and was for $12,000. The third count was based on a cashier's check, like the others, except that it was dated June 20, 1910, and was for $7,800. The fourth count was based on a cashier's check, like the others, except that it was dated June 11, 1910, and was for $14,500. The fifth count was based on a cashier's check, like the others, except that it was dated June 20, 1910, and was for $7,725.

At the time these checks were drawn, in June, 1910, Raymond Hoss was hard pressed for money and in much financial distress, and on June 8, 1910, he commenced drawing personal drafts upon his uncle, C. M. Hoss, to be collected through the Union Trust Company, at Tulsa, Okl., at which company C. M. Hoss carried a personal banking account. The first draft was for $7,186.25. At that time he (C. M. Hoss) had a balance to his credit in the Union Trust Company of only $28.58. On June 10, 1910, this draft was paid by the Trust Company and the amount thereof charged to the account of C. M. Hoss. On the same day, June 10, 1910, the account of C. M. Hoss in the Trust Company was credited with $7,500, the amount of the cashier's check involved in the first count of the indictment. On June 11, 1910, R. H. Hoss drew a personal draft on C. M. Hoss for $13,900. On June 16, 1910, this draft was paid by the Trust Company and charged to the personal account of C. M. Hoss. On June 14, 1910, his account was credited with $14,500, the amount of the cashier's check described in the fourth count of the indictment. On June 18, 1910, R. H. Hoss drew a personal draft on C. M. Hoss for $12,000, and on June 23, 1910, this was paid by the Trust Company and charged to the account of C. M. Hoss. On June 22, 1910, his (C. M. Hoss) account was credited with the sum of $12,000, the amount of the cashier's check of date June 17, 1910, described in the second count of the indictment. Prior to June 27, 1910, R. H. Hoss drew a personal draft on C. M. Hoss for $15,000. On June 27, 1910, this amount was paid by the Trust Company and charged to the personal account of C. M. Hoss. On June 24, 1910, the account of C. M. Hoss was credited with two items, one $7,800, and the other $7,725; these sums corresponding to the amounts of the two cashier's checks involved in the third and fifth counts of the indictment.

From the foregoing it appears that there was a striking coincidence between the amounts of the several cashier's checks counted on in the indictment and the personal drafts of Raymond Hoss upon his uncle, C. M. Hoss, and also a substantial coincidence between the dates the cashier's checks were credited to C. M. Hoss in his account with the Union Trust Company and the dates the personal drafts on C.

M. Hoss were presented for payment at the same Trust Company. It further appears that C. M. Hoss personally indorsed four of the cashier's checks at or before the time they were credited to his account in the Trust Company, and that the other one was indorsed by the cashier of the Trust Company for deposit to the credit of C. M. Hoss. It further appears that the cashier's checks were drawn by Rochau, the cashier, surreptitiously, and were not entered of record in the books of the bank in their proper place where cashier's checks were kept. The checks were drawn by Rochau, the cashier, without the authority of the board of directors of the bank, or without any other lawful authority. They were finally paid by Raymond H. Hoss when they were presented by the Union Trust Company for payment at the First National Bank.

So much for what is practically uncontradicted testimony. In addition to this there was evidence of other transactions involving the use of personal drafts and cashier's checks at about the same time by the same parties, and much extraneous evidence tending to show directly and inferentially the intent with which the cashier's checks were drawn; the government claiming that it all tended to show an intent to defraud the bank upon which they were drawn, and the defendant claiming that it failed to disclose that intent, but did disclose an intent to tide the bank over an embarrassing condition, and more particularly to maintain its legal reserve, which was claimed to have been in danger of impairment.

On this testimony the case was submitted to the jury in a charge fairly presenting the issues involved and the law applicable to them, and particularly the issue of intent. The court, in repeated ways, advised the jury that they could not convict the defendants Raymond and C. M. Hoss, or either of them, as aiders or abettors, unless they should find that Rochau, the cashier, drew the cashier's checks with intent thereby to defraud the bank, and also find that the defendants Raymond and C. M. Hoss aided and abetted him in so doing, with the same intent. That issue was very clearly impressed upon the jury as the one important and controlling issue of fact in the case. The result was the jury found a verdict of guilty on each and every count of the indictment, and judgment was rendered thereon, as hereinbefore stated.

The first assignment of error challenges the action of the trial court in refusing the request of the defendant C. M. Hoss for an instructed verdict of not guilty in his favor. Counsel now assign three reasons why that instruction should have been given: First, because the cashier's checks counted on in the several counts of the indictment were not bills of exchange within the meaning of section 5209 of the Revised Statutes (Comp. St. 1913, Sec. 9772); second, because there was no substantial evidence tending to show that either Rochau, the cashier, or Raymond or C. M. Hoss, had the intent to defraud the bank in what they did; and, third, because there was no proof that C. M. Hoss committed the offense charged against him in the Western district of Oklahoma, as charged in the indictment.

Were the cashier's checks bills of exchange within the meaning of section 5209? That section reads as follows 'Every president, director, cashier, * * * or agent of any association, * * * who,...