Phillips v. United States

• Decision Date: 21 November 1912
• Docket Number: 3,700.
• Parties: PHILLIPS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F. 259

PHILLIPS v. UNITED STATES.

No. 3,700.

United States Court of Appeals, Eighth Circuit.

November 21, 1912

[Copyrighted Material Omitted]

B. T Hainer, of Tulsa, Okl., and William P. Thompson, of Vinita Okl., for plaintiff in error.

William J. Gregg, U.S. Atty., of Tulsa, Okl.

Before SANBORN and CARLAND, Circuit Judges, and W. H. MUNGER, District judge.

CARLAND Circuit Judge.

Phillips was indicted on June 12, 1907, in the United States Court for the Northern District of the Indian Territory, held at Vinita, for a violation of section 5209, Rev. Stat. (U.S. Comp. St. 1901, p. 3497). In substance, the indictment charged him with having made a false entry in a report to the Comptroller of the Currency of the condition of the First National Bank of Vinita at the close of business on the 4th day of September, 1906. The report was alleged to be false, in that it showed the balance due from the Hanover National Bank, New York, to the First National Bank of Vinita, on September 4, 1906, as $21,007.97, when in truth and in fact said balance was only $14,895.97. Upon trial, a verdict of guilty was rendered by the jury, and Phillips was thereupon sentenced to the penitentiary for five years.

On June 20, 1907, a plea of not guilty was entered to the indictment. November 16, 1907, the state of Oklahoma was admitted to the Union. December 19, 1907, the United States attorney for the Eastern district of Oklahoma filed a petition in the district court for Craig county, Second judicial district of Oklahoma, praying that an order of that court might be entered removing said case from the district court of Craig county, Okl., to the District Court of the United States for the Eastern District of Oklahoma. On December 20, 1907, the prayer of this petition was granted, and the indictment, subpoena, petition for transfer, and order of transfer were duly certified and transmitted to the United States District Court for the Eastern District of Oklahoma.

Section 16 of 'An act to enable the people of Oklahoma and of the Indian Territory to form a constitution and state government, etc. ' (Act June 16, 1906, c. 3335, 34 Stat. 276), provided:

'That all causes pending in the supreme and district courts of Oklahoma Territory and in the United States courts * * * in the Indian Territory * * * in which the United States may be a party * * * shall be transferred to the proper United States Circuit or District Court for final disposition.'

Said section 16 was amended by Act March 4, 1907, c. 2911, 34 Stat. 1286, by adding, after the word 'disposition':

'And shall therein be proceeded with in the same manner as if originally brought therein.'

Section 16, as amended, further provided:

'Prosecutions for all crimes and offenses committed within the territory of Oklahoma or in the Indian Territory, pending in the district courts of the territory of Oklahoma or in the United States courts in the Indian Territory upon the admission of such territories as a state, which, had they been committed within a state would have been cognizable in the federal courts, shall be transferred to and be proceeded with in the United States Circuit or District Court established by this act for the district in which the offenses were committed, in the same manner and with the same effect as if they had been committed within a state.'

The case against Phillips was continued from time to time, sometimes at his own request, and at other times seemingly abandoned by both parties, until May 9, 1911, when the case was moved for trial at Tulsa, in the Eastern district of Oklahoma. At this time, counsel for Phillips moved the court to dismiss the case for want of jurisdiction, for the reason that the record had not been properly certified from the court in which the indictment was found, or its successor, the district court for Craig county, Second judicial district of Oklahoma. The motion was overruled and an exception taken. There is no merit whatever in this contention, as the record, taken in connection with the law providing for the transfer of the case, shows it was properly transferred.

It appears from the record that the jurors, with the exception of one, were drawn from that portion of the Eastern district of Oklahoma which did not include any portion of the old Northern district of the Indian Territory. These jurors were challenged, and, upon the challenges being disallowed, exception was taken to the ruling of the court in reference thereto. In view of the acts of Congress hereinbefore quoted, we think there was no error in this action of the court, especially in view of the decisions in Billingsley v. United States, 178 F. 653, 101 C.C.A. 465, Cook v. United States, 138 U.S. 157, 11 Sup.Ct. 268, 34 L.Ed. 906, and Hallock v. United States, 185 F. 417, 107 C.C.A. 487.

Counsel for Phillips also moved the court to dismiss the case and discharge the defendant, because the United States had failed to bring him to trial at an earlier date. This motion was also overruled. The sixth amendment to the Constitution of the United States provides that the accused shall enjoy the right to a speedy and public trial; but the record does not show that Phillips ever asked for a trial during the four years that the indictment was pending, and we do not think a defendant can acquiesce in the postponement of his trial, and then, when the same is called, move that the case be dismissed because he had not been given a speedy trial. It is his duty, if he wants a speedy trial, to ask for it; and we must presume that he would have been granted an earlier trial if he had so asked. There was no error in the ruling of the court in this respect.

The refusal of the court to allow the defendant to withdraw his plea of not guilty and file a demurrer to the indictment was within the sound discretion of the court, and we see no abuse of discretion.

The sufficiency of the indictment was raised by motion in arrest, and the motion was overruled. Judged by the statute under which the indictment was returned, and the cases of United States v. Britton, 107 U.S. 655, 2 Sup.Ct. 512, 27 L.Ed. 520, and Harper v. United States, 170 F. 385, 95 C.C.A. 555, the indictment was clearly sufficient.

At the close of all the evidence counsel for defendant moved for a directed verdict, on the ground that there was a variance between the indictment and the evidence. It appeared in evidence that the true balance due from the Hanover National Bank to the First National Bank on September 4, 1906, was $14,947.68, instead of $14,895.97, as alleged in the indictment. This was an immaterial variance. The gist of the offense was the making of a false entry, knowingly and with intent to deceive, the exact amount of the balance stated to be due was not material, and the defendant could not have been misled or surprised in any way by the proof. United States v. Harper (C.C.) 33 F. 471; Flickinger v. United States, 150 F. 1, 79 C.C.A. 515; United States v. Graves (D.C.) 53 F. 634; Richardson v. United States, 181 F. 1, 104 C.C.A. 69; Daniels v. United States (C.C.A.) 196 F. 459. It follows, also, that the court did not err in refusing to instruct in this matter as requested by counsel for defendant, and no exceptions were taken to the charge as given.

Certain witnesses were allowed to give testimony, over the objection of counsel for the defendant, to the effect that the defendant, on October 9, 1906, had admitted that he was short in his accounts, and that he thought most of it was in the account of the Hanover National Bank. The defendant was charged with having made a false entry on September 4, 1906, and it is a close question as to whether or not this testimony concerning admissions of defendant made on October 9, 1906, tended in any way to prove the commission of the offense with which he was charged. It was admitted by the court on the theory that it would furnish a motive for the defendant to make the false entry, and that it would be some evidence that he made the entry knowing it to be false. The court in its charge limited the effect of the evidence, so far as it could, by telling the jury that the defendant was not charged with embezzlement or misapplication of the bank's funds, and that they should only consider the admissions of the defendant in so far as they would throw light upon the question as to whether the defendant knowingly made the false entry with which he was charged. We think, upon the whole, that as limited by the court it was not error to receive this evidence.

Two books of account, a register and a journal, of the Hanover National Bank, were admitted in evidence over the objection and exception of counsel for the defendant, and the court charged the jury that these books were presumed to be correctly kept until the contrary was shown. The following testimony is all the foundation that was laid for their admission:

Frank E. Wheeler was called as a witness for the prosecution, and testified as follows:

'Q. Are you in any way associated with the Hanover National Bank of New York? A. I am. Q. In what capacity? A. There isn't any name for my position. Q. No official name for it? A. No. Q. Are you familiar with the books of the Hanover National Bank of New York? A. I am. Q. I will ask you to look at this journal. What book is that called-- what is the name of it? the--whose titles come under the-- letters T to Z, national banks. Q. Does this ledger show the account between the Hanover National Bank and the First National Bank at Vinita, Indian Territory, in the year 1906? A. Six months of the year 1906. Q. Those entries in that book, by whom were they made, Mr. Wheeler? A. By various bookkeepers. Q. In the employ of the Hanover National Bank. And you say this is a

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