Lewis v. United States

• Decision Date: 28 November 1927
• Docket Number: No. 7492.,7492.
• Citation: 22 F.2d 760
• Parties: LEWIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

22 F.2d 760 (1927)

LEWIS et al. v. UNITED STATES.^*

No. 7492.

Circuit Court of Appeals, Eighth Circuit.

November 28, 1927.

R. L. Davidson, of Tulsa, Okl. (W. I. Williams, of Tulsa, Okl., on the brief), for plaintiffs in error.

Nugent Dodds, Sp. Asst. Atty. Gen., and Frank Lee, U. S. Atty., of Muskogee, Okl. (John M. Goldesberry, Sp. Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Plaintiffs in error, Allie E. Lewis and William Lloyd Lewis, were indicted in the United States District Court for the Eastern District of Oklahoma at Muskogee, June 23, 1925. The indictment contains 40 counts. The first 37 charge plaintiffs in error with making false entries in a certain minute book of the Liberty National Bank with intent to injure and defraud said bank and divers other persons, companies, and corporations, and with intent to deceive the other officers of said bank, the Comptroller of the Currency, and the agents and examiners appointed under the laws of the United States to examine into the affairs of the bank. The last three counts charge plaintiffs in error with making false entries in three different reports of said bank to the Comptroller of the Currency, which reports purported to show the financial condition of said bank at the close of business on certain dates. They allege that these false reports were made with intent to deceive the Comptroller of the Currency and the agents and examiners appointed under the laws of the United States to examine into the affairs of said bank. Plaintiffs in error were respectively the president and vice president of the Liberty National Bank at all times mentioned in the indictment, and as such exercised practically complete control of its affairs. The board of directors appears to have been selected by them, held no meetings, and exercised no supervision over the institution. The charge was that plaintiffs in error obtained for their personal use several hundred thousand dollars of the money of the bank by procuring third parties to execute notes, the proceeds of which came to and were used by plaintiffs in error; that many of these notes were wholly worthless, and the bank was rendered insolvent. Subsequently the Liberty National Bank was merged with the Security National Bank of Tulsa, and thereafter the stockholders of the latter bank were assessed approximately $600,000 because of worthless paper taken over from the Liberty National Bank.

It is further charged that, in order to deceive the bank examiners and to convey the impression that the notes, to which reference has been made, had been examined by the discount committee, and approved by the board of directors, plaintiffs in error caused pretended minutes of purported meetings of the board to be written up and signed. In such minutes pretended reports of a discount committee, and approval of such reports by the board, were recited. These minutes were prepared under the express direction of plaintiff in error William Lloyd Lewis, and were signed by the president. As matter of fact, the bank had no acting discount committee, and held no meetings of the board of directors at the times and for the purposes stated in these minutes. Both defendants were found guilty upon all counts of the indictment, except the twenty-first, thirty-first, thirty-fifth, and thirty-seventh. Upon the first count of the indictment each defendant was sentenced to pay a fine of $5,000 and costs of prosecution, and to be imprisoned in the United States penitentiary at Leavenworth, Kan., for a period of five years, and on each of the remaining 35 counts to be imprisoned for a period of five years in said penitentiary; the sentences on said last 35 counts to run concurrently with each other and with the sentence imposed on count one. The assignments of error contain 287 specifications. The errors relied upon are those epitomized by counsel:

(1) The grand jury was illegal and void, and did not have the power or authority to find and return the indictment.

(2) The United States District Court for the new Eastern District of Oklahoma was without jurisdiction to try the defendants on this indictment.

(3) The petit jury was an illegal jury, because it was not drawn, selected, and impaneled by law.

(4) Judge Kennamer was without power or authority to pass on the motion to quash the motions to dismiss and the demurrer to the indictment.

(5) Each count of the indictment fails to state facts sufficient to constitute a public offense.

(6) The false entry charge was not set out in hÊc verba or by its tenor.

(7) The evidence is insufficient to sustain the verdicts.

And, incidentally thereto, that neither defendant made, or directed to be made, the entries charged in the reports to the Comptroller; that the minute book of the bank, not being an account book, does not come within the meaning of the word "book," as used in section 5209, Revised Statutes (12 USCA ß 592), and that minutes of the meetings of the board of directors and stockholders are not entries within the meaning of the word "entry" as used in said section; that incompetent evidence was introduced at the trial, and that the court erred in refusing certain instructions requested by plaintiffs in error.

There were originally two judicial districts in the state of Oklahoma — the Eastern and Western. The judges of the Eastern district were Hon. R. L. Williams and Hon. F. E. Kennamer. Upon their failure to agree upon the division of business and the assignment of cases for trial in their district, the senior Circuit Judge of the circuit made an order dividing the district into two divisions. The First division included the following places at which the District Court was held, to wit: Vinita, Muskogee, McAlester, and Hugo, and the counties tributary thereto. The Second division included the following places of holding court, to wit: Tulsa, Ada, Ardmore, and Chickasha, and the counties tributary thereto. The order provided for the division of business and the assignment of cases for trial in the district as follows:

"It is further ordered that all the judicial business of this court, and of the judges thereof as such, now pending, except as to questions or issues which have been submitted to one of the judges for decision, and all the judicial business that shall arise in or come from the territory in the First division on and after the date of this order be, and it is hereby, exclusively assigned to Hon. R. L. Williams. And, because the offices and records of the United States marshal and the United States district attorney are at Muskogee, and it has been the practice to hold the sessions of the grand jury for the entire district at Muskogee, the judicial business for the entire district of convening and presiding over the grand jury and of directing its course, of receiving informations, indictments and pleas of guilty, and pronouncing sentences on pleas of guilty, and of arraigning defendants, taking their pleas, and allowing bail before hearing or trial, is assigned to Hon. R. L. Williams. But the argument of law questions and the trial of criminal cases on motions, demurrers, and pleas shall be had in the division in which the offense is charged to have been committed, and before the judge to whom the judicial work of that division is generally assigned.

"It is further ordered that, except as to the portion of the judicial business in the Second division relating to the grand jury, the filing of informations, the arraigning of defendants, the taking of pleas of guilty, pronouncing sentences thereon, etc., assigned to Hon. R. L. Williams in the preceding paragraph, all the judicial business of this court and of the judges thereof as such, now pending, except as to questions or issues which have been submitted to one of the judges for decision, and all the judicial business that shall arise or come from the territory in the Second division on and after the date of this order is hereby exclusively assigned to Hon. F. E. Kennamer.

"It is further ordered that, unless and until otherwise ordered by the judge to whom the judicial work of the division in which any county is situated, the cases and issues arising in or coming from such county shall be and hereby are assigned for hearing and trial to the court town to which such county is heretofore in this order declared tributary."

An act of Congress, approved February 16, 1925, by section 1 (28 USCA ß 182 Comp. St. ß 1088), created three independent districts in the state of Oklahoma, designated as the Eastern, Western, and Northern. The said newly created Northern district comprises ten counties which were formerly a part of the old Eastern district and two counties which were formerly a part of the old Western district. The new Eastern district comprises the remaining counties of the old Eastern district, and the new Western district comprises the remaining counties of the old Western district. Muskogee and Ardmore remain in the Eastern district, and Tulsa county, in which lies the city of Tulsa, is in the Northern district. It will thus be seen that the Northern district was formed by the transfer of ten counties from the Eastern district and two counties from the Western district. In other respects the Eastern and Western districts remain as before.

Act Feb. 16, 1925, ß 2, contained the following provisions:

"The present senior judge of the Eastern district of Oklahoma be, and he is hereby, assigned to hold said court in the said Eastern district, and shall exercise the same jurisdiction and perform the same duties within the said district as he exercised and performed within his district prior to the passage of this act. That the present judge of the Western district of Oklahoma be, and he is hereby, assigned to hold said court in the Western district of Oklahoma, and shall exercise the same jurisdiction and...