McNeil v. United States, 6610.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMARTIN, Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices
Citation85 F.2d 698,66 App. DC 199
Docket NumberNo. 6610.,6610.
Decision Date13 July 1936

66 App. DC 199, 85 F.2d 698 (1936)


No. 6610.

United States Court of Appeals for the District of Columbia.

Argued June 1, 1936.

Decided July 13, 1936.

85 F.2d 699

R. H. McNeill, of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and John J. Wilson, Asst. U. S. Atty., both of Washington, D. C.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, Associate Justice.

Benedict M. McNeil was indicted at the April, 1933, term with Robert S. Stunz and Alexander McNeil under the conspiracy statute (section 37, Criminal Code, 18 U.S. C.A. § 88). The indictment was in two counts; the first charging that the three named conspired to commit the offense of grand larceny; the second, to commit the offense of embezzlement. Appellant was assistant cashier of the Park Savings Bank from February 1, 1925, to August 13, 1929. Stunz was the executive vice president of the bank until it was closed by the so-called bank holiday in 1933. Alexander McNeil, the father of appellant, was a customer and depositor in the bank during all of the period mentioned in the indictment. Stunz admittedly embezzled approximately $2,000,000 of the bank's money, and committed suicide March 14, 1933. Alexander McNeil died February 16, 1934. Appellant was subsequently tried alone, and found guilty, November 25, 1935, on both counts of the indictment. His motion for a new trial was overruled, and this appeal taken.

There are 68 assignments of error. Some are abandoned, and those not abandoned may be properly combined under the following general headings:

First, those relating to the admission and exclusion of evidence, oral and documentary, including the admission of evidence without first having shown the existence of the conspiracies, and including also the insistence of appellant that the testimony of the government's accountant expert witness was erroneously admitted.

Second, the refusal of the trial court to require the United States to elect as between the two counts of the indictment.

85 F.2d 700

Third, the refusal of the trial court to direct a verdict of acquittal.

Fourth, those relating to the trial court's granting certain of the government's instructions and rejecting certain of appellant's instructions.

Park Savings Bank was an Alabama banking corporation doing a banking business exclusively in the District of Columbia. After the general bank closing order of March, 1933, it was examined and found to be insolvent, and in due time the Comptroller of the Currency took charge of the bank and appointed a receiver. The elder McNeil, the father of appellant, was engaged in the real estate business in Washington City; and it was the theory of the prosecution that, beginning as far back as February, 1925, the conspiracies were formed between the appellant, his father, and Stunz to obtain illegally and improperly the funds of the bank, and that these conspiracies continued until the closing of the bank in 1933.

The theory of the defense was that there was no proof of conspiracies between appellant, his father, and Stunz.

Twelve overt acts are charged, and are the same in each count of the indictment. The first act charged is that on October 8, 1930, the defendants McNeil (both father and son) drew on the elder McNeil account in the bank and caused the account to be overdrawn in the sum of $267. The next, that on February 18, 1931, Stunz caused a fictitious credit of $845.93 to be placed to the McNeil account. The remaining 10 overt acts follow the same course; that is to say, first an overdraft and then a fictitious credit. The final overt act charges that on March 3, 1933, defendants McNeil caused the McNeil account to be overdrawn $823.02, which was the amount of the overdraft when the bank closed. The larceny and embezzlement are charged in the amount of $50,000.

To sustain its case the government relied principally upon the witness Sauer, an expert accountant attached to the Federal Bureal of Investigation. He was produced to prove that sundry deposits made in the McNeil account were fictitious and that the bank received nothing on account thereof. All the books, records, vouchers, and accounts of the bank had been turned over by the receiver to Sauer, and his testimony was based entirely on the records. The books, slips, work sheets, etc., were either introduced or identified by witnesses employed in the bank and who kept the records; and they were available to appellant's counsel during the trial.

There was testimony of but two declarations. One, a letter found in Stunz's desk at the bank after his suicide. That letter, dated February 28, 1933, and addressed "To Whom it May Concern," stated that "no person now employed in the bank is responsible for any irregularities. I, alone, am responsible." The other was the testimony of Sauer that appellant admitted to him that the items which the government contends were fictitious, and which appear on the books of the bank in the McNeil account, were items from which he (appellant) benefited personally and from which also Stunz benefited personally. Aside from these, there is nothing to show any pre-existing, continuing conspiracies, except the nature of the transactions relied upon by the government. Two of the most typical and less devious of these, though not charged as overt acts, are helpful in explaining the method which it is claimed the conspirators adopted to rob the bank. Both occurred while appellant was still at the bank.

On May 25, 1929, the McNeil account was overdrawn $869.53. It continued overdrawn thereafter until June 22, 1929, at which time it was overdrawn $8,285.76. About the same date appellant's personal account was overdrawn $499.57. On June 22d, $9,500 was deposited to the A. McNeil account and $500 to appellant's personal account, thus wiping out the overdrafts. Appellant claims that the $10,000 used to make good the two accounts was drawn from the McNeil savings account. There was some testimony that such an account had been carried in the bank, and a former clerk in the bank testified that at one time it amounted to $10,000; but no records of it were found by those who examined the bank, and appellant offered no proof, such as a pass book — which, if one ever existed he should have had or known of or at least have been able to explain the loss of — to bear out his claim. The government, on the other hand, claims that the $10,000 was the fictitious withdrawal from a fictitious account in the name of one Robert P. Smith. To sustain this contention, the government introduced two deposit slips in appellant's handwriting; the one to the A. McNeil account for $9500 and the other to his own account for $500. These were dated June 17, 1929. (The

85 F.2d 701
ledger sheets for these two accounts show no such deposits on this date.) The government also introduced a savings account card for the account of Robert P. Smith, showing a withdrawal on June 22d of $10,000, causing overdraft of the same amount, and a debit ticket (dated June 17, 1929) on the Smith account of $10,000 which was in appellant's handwriting. There never was any such Smith account in the bank, and appellant's explanation of his connection with the transaction is neither satisfactory nor convincing. He testified that the item was one of numerous items purporting to be the sale of first trust notes to Smith; that he knew Smith and knew he did not have a savings account at the bank; and that he knew that a debit ticket on a dummy account would be erroneous; but that if it were a "cash item" it would be a normal transaction for the bank to make out a debit ticket on a savings account which a customer did not have and carry the item in the cash drawer as a cash item. We understand this explanation to mean that the transaction would be a normal one if at the time it occurred Smith had deposited with the bank or sold to the bank deed of trust notes equal in amount to the debit item. The theory of the government, however, is that...

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