McKnight v. United States

• Decision Date: 05 June 1903
• Docket Number: 1,170.
• Parties: McKNIGHT v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

122 F. 926

McKNIGHT v. UNITED STATES.

No. 1,170.

United States Court of Appeals, Sixth Circuit.

June 5, 1903

A. E Richards, for plaintiff in error.

R. D Hill, for the United States.

Before LURTON and SEVERENS, Circuit Judges, and SWAN, District Judge.

LURTON Circuit Judge.

This is a writ of error sued out by the plaintiff in error, who, for the fourth time, has been convicted upon an indictment charging him with embezzlement of the funds of a national bank of which he was the president. The several opinions of this court reversing former judgments of conviction may be referred to for the details of the case and the grounds of our action upon former writs of error. McKnight v U.S., 97 F. 208, 38 C.C.A. 115; Id., 111 F. 735, 49 C.C.A. 594; and Id., 115 F. 972, 54 C.C.A. 358.

1. The plaintiff in error has assigned as error that he was not permitted on cross-examination of the witness Reutlinger teller during the time of McKnight's alleged wrongdoing, to ask whether McKnight had not frequently lectured him for shortages in his cash accounts as teller. This assignment is not well taken. Before any objection was made, the following occurred:

'Q. Were not your accounts as teller frequently short? A. Yes. Q. During that time? A. Yes, sir; they were. Q. Wasn't there a shortage in the money account in your teller's cage? A. The same as with any other teller, you know. The teller is responsible for any errors the bookkeepers make. Q. Didn't Mr. McKnight frequently lecture about the shortage in your cash account? A. Now and then. By Mr. Hill: I object to that. I haven't said anything about that.'

Judge Richards urged its competency for the purpose of showing the witness' animosity toward the defendant. The court ruled that the evidence was not proper cross-examination, but that the witness might be asked as to his feelings toward defendant, but that it was inadmissible to 'go into the reasons' for such feeling. Thereupon the attorney for defendant called attention to the fact that no objection had been made until the witness had answered, whereupon the court said: 'The district attorney did not object until after the question was answered. We will just let it stand. ' Subsequent efforts were made to further cross-examine in respect to the shortages of the witness and Mr. McKnight's 'lectures' in consequence, which, on objection, were excluded, with the statement by the court that the witness might, at a later stage, be recalled and examined as to his accounts as teller. The attorney thereupon avowed that, if permitted, the witness would answer that shortages had occurred in his account as teller, and that McKnight had 'lectured' him on that account.

In Wills v. Russell, 100 U.S. 621, 625, 25 L.Ed. 607, Justice Clifford, for the court, said:

'The established rule of practice in the federal courts and in most other jurisdictions in this country is that a party has no right to cross-examine a witness, without leave of the court, as to any facts or circumstances not connected with matters stated in his direct examination, subject to two necessary exceptions: He may ask questions to show bias or prejudice in the witness or to lay the foundation to admit evidence of prior contradictory statements. Subject to those exceptions, the general rule is that, if the party wishes to examine the witness as to other matters, he must, in general, do so by making him his own witness, and calling him as such in the subsequent progress of the case.'

We have in several cases had occasion to apply the general rule thus stated. Seymour v. Malcolm McDonald Lumber Co., 58 F. 957, 7 C.C.A. 593, 16 U.S.App. 249, 250; Montgomery v. AEtna Life Ins. Co., 97 F. 913, 38 C.C.A. 557; O'Connell v. Pennsylvania Co. (C.C.A.) 118 F. 989. But the ruling in this case was clearly harmless, even if it be admissible to inquire as to facts from which ill will might be inferred, because the very facts which the witness was desired to prove had been proved before any objection was made, and, upon the insistence of the attorney for the defendant, allowed to remain as part of the evidence in the case because not objected to.

2. It is next assigned as error that the court permitted to be read from a book purporting to be the minute book of the bank a minute showing the election of Mr. McKnight as a director, then as vice president, and then as president of the German National Bank. The witness had before testified that he was a national bank examiner, and that as such he had made an examination of the German National Bank in January, 1897, and taken possession of its effects by direction of the comptroller; and that he then took possession of the books he found in use in the bank, and that the minute book from which he later read the minute in question was one of the books then in the bank which came to his possession. Prior to this evidence, Mr. Adolph Reutlinger had testified that he had been connected with the bank from its origin, first as a cashier, then as president, and that he was the vice president at the time the bank was closed. This witness also testified that certain books, then shown him, were the books used by the bank during the time it was in business. One of the books so identified was the minute book showing the election of Mr. McKnight both as director and then as president, and the same book from which the minutes objected to were read. The objection to the reading of the minutes only came after the minute book had been thus identified by the two witnesses referred to. The objection made was a general objection, and did not specifically point out any ground of objection. We think the minute was sufficiently identified as a minute from the book of the bank, and that the minute read, together with evidence that McKnight was acting as president of the bank at the time of the alleged embezzlement, was at least prima facie evidence that he was the president of the bank, as charged in the indictment. That he was acting as president and claiming to be president at the time of the alleged embezzlement was enough to support the averment that he was in the control and custody of the bank's funds as president, for his pretension to hold the office was an admission that he was such an officer, and he would be liable though not de jure such. Wharton's Criminal Law, Sec. 1589; United States Bank v. Dandridge, 12 Wheat. 64, 70, 6 L.Ed. 552.

3. One ground upon which we reversed the former judgment in this case was for the error of the trial judge in permitting the defendant to be called upon, in the presence of the jury and during the trial,...