Seals v. United States
| Decision Date | 05 April 1955 |
| Docket Number | No. 15107.,15107. |
| Citation | 221 F.2d 243 |
| Parties | H. C. SEALS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Boyd Tackett, Texarkana, Ark., and W. S. Atkins, Hope, Ark. (Bobby Steel, Nashville, Ark., Ben Shaver, and Paul Jones, Texarkana, Ark., were with them on the brief), for appellant.
Henry M. Britt, Asst. U. S. Atty., Fort Smith, Ark. (Charles W. Atkinson, U. S. Atty., Fayetteville, Ark., and Robert E. Johnson, Asst. U. S. Atty., Greenwood, Ark., were with him on the brief), for appellee.
Before GARDNER, Chief Judge, and COLLET and VAN OOSTERHOUT, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by defendant Seals from judgment and conviction under the following indictment:
"On or about March 3, 1952, in the Western District of Arkansas, Opal Henrietta Simmington, an agent, officer, and employee of the Bank of Dierks, Dierks, Arkansas, the deposits of which were at the time insured by the Federal Deposit Insurance Corporation, and H. C. Seals, a customer of said bank, did embezzle, abstract, purloin, and wilfully misapply the sum of $4,356.80, for which amount the said H. C. Seals drew a check upon his account in said bank, and presented the said check for payment to the said bank, and the said Opal Henrietta Simmington, as such officer, agent, and employee did pay the said check, the said H. C. Seals not having on deposit in said bank at the time funds with which to pay said check."
Mrs. Simmington was also convicted and served notice of appeal but her appeal has been dismissed upon her own application.
Defendant Seals urges a number of errors which he claims entitle him to a reversal. His first contention is that the court erred in overruling his motion for judgment of acquittal made at the close of the Government's evidence and renewed at the close of all of the evidence, based on the ground that there was no testimony whatsoever from which a reasonable inference could be drawn that Seals had any willful intention to defraud the bank or to aid or abet Mrs. Simmington to defraud the bank.
The uncontroverted evidence establishes that Seals on March 3, 1952, cashed a check on the bank of Dierks for $4,356.80 and received the proceeds thereof in cash. It is stipulated that the Bank of Dierks is an insured bank. The indictment is based on Title 18, United States Code, section 656.1 This statute is a revision of section 592, Title 12, United States Code, 1940 Edition. The legislative history of the present act is fully reviewed in United States v. Klock, D.C.N.D.N.Y., 100 F.Supp. 230, 233, reversed on other grounds, 2 Cir., 210 F.2d 217, where the conclusion is reached that no substantial change in the prior statute was intended. The court quotes with approval the Reviser's Note reading, "`The revised section without changing in any way the meaning or substance of existing law, clarifies, condenses, and combines related provisions largely rewritten in matters of style.'" The former act expressly made intention to injure or defraud the bank an element of the offense. Under the present act the fraudulent intent remains a necessary element of the crime. In this case the trial court in its instructions correctly told the jury that in order to convict they must find that Seals intended to injure or defraud the bank.
The honoring of a check which creates an overdraft is not necessarily a violation of 18 U.S.C. § 656. In reversing for excluding evidence bearing on intent, the court, in United States v. Klock, 2 Cir., 210 F.2d 217, 221, said:
* * *"
In United States v. Matot, 2 Cir., 146 F.2d 197, at page 198, the court in discussing a situation somewhat similar to the one involved in the present case states:
* * *"
In Dow v. United States, 8 Cir., 82 F. 904, at page 908, this court said:
"* * * Of course, frauds and criminal misapplications of bank funds by the officials thereof may be committed by the recognition or payment of checks drawn on the bank when there are not funds to meet the same; but the criminal wrong, including the intent, must appear from all the facts surrounding the transaction, and cannot be inferred, as a matter of law, from the mere fact that when the check was drawn there were not funds on deposit to meet the check * * *."
In 7 Am.Jur., Banks, § 609, p. 442, it is stated:
"According to the general view the payment of an overdraft by a bank amounts to a loan to the depositor; for that reason the amount thereof may be recovered from the depositor."
See also 9 C.J.S., Banks and Banking, § 353(b), page 703.
From the foregoing it is apparent that in order to convict in this case the Government must go further than to show that the cashing of the defendant's check resulted in an overdraft. It must in addition show that Seals had an intent to injure or defraud the bank, or to aid or abet Mrs. Simmington in so doing. The crucial question on this appeal is whether the record contains evidence which will support a finding that Seals intended to injure or defraud the bank. To answer this question it is necessary that the evidence be examined in some detail.
Seals was a small merchant and farmer and had been a customer of the Bank of Dierks for many years. The ledger of his account since 1939 is in evidence. During most of this period he maintained a substantial balance. No serious question is raised as to the accuracy of the account prior to 1950. The active officers and employees of the bank were Tom Westbrook, Vice-President and Cashier, and Mrs. Simmington, Assistant Cashier and Bookkeeper. Westbrook owned 85 per cent of the stock. The bank in recent years has not sent out statements supported by cancelled checks to its customers regularly. The only evidence as to this is that offered by Seals and Mrs. Simmington. The latter's testimony is that Mr. Westbrook directed her not to send out statements, and that there had been many complaints about this practice from the customers.
When Seals was told in 1951 that his balance was a few hundred dollars, he expressed dissatisfaction with the amount and made numerous efforts to get his statements and cancelled checks and to have his balance corrected. He eventually received from the bank statements covering at least most of the period from April 1950 to September 1951 (Exhibits 17-22) with supporting checks. Exhibit 22 contains the statement, "I found your statement for May 1950." Exhibit 14, an undated letter from the bank to Seals, states:
Seals was told that he had been given all the statements and checks that the bank had. At the trial the Government produced from the bank's records Exhibit 28, customer's statement covering the period from January to April 1950, showing withdrawals of $3,995, but without supporting checks. The fact that this customer's statement was found in the bank with perforated margins unremoved would at least raise an inference that such statement and supporting checks had never been sent to Seals. After a number of conferences at the bank with Mrs. Simmington, Seals at her suggestion mailed her a list of his 1950-1951 deposits. These were verified by the bank and one deposit of $499.80 Seals. had omitted was added.
Seals arrived at what he claimed he had on deposit before the issuance of the $4,356.80 check as follows:
January 30, 1950, Balance $3,037.30
1950-1951 deposits evidenced
by duplicate slips and
verified by bank 5,074.95
_________
Total credit $8,112.25
1950-1951 checks returned
to him by bank as shown
on statements returned to
him 3,743.78
_________
Balance $4,368.47
This statement was shown by Seals to Mrs. Simmington, who, after a number of conferences and some checking, agreed that the balance was right.
There is no real dispute as to the January 1950 balance of $3,037.30. The examiner took a little different starting point. Seals said that this figure was given him by the bank, and Exhibit 3, Bank Deposit Ledger, shows this exact balance on January 17, 1950. The above deposit figure of $5,074.95 is also undisputed. These deposits were verified and approved by the bank examiner. The variance in dispute arises on the item of the checks issued since January 1950. The examiner contends that the total checks drawn during the involved period amounted to $7,193.44 as shown by Exhibit 47. His total was arrived at by adding all checks listed on the bank's ledger sheet since January 1950. The addition of the check figures on said ledger sheet is apparently accurate. Seals contends that the only statements he received for the period after January 1950 are Exhibits 17-22, and that he received only the checks covered by these statements. Some of...
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