Shaw v. United States

• Decision Date: 01 August 1923
• Docket Number: 6120.
• Citation: 292 F. 339
• Parties: SHAW v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

292 F. 339

SHAW v. UNITED STATES.

No. 6120.

United States Court of Appeals, Eighth Circuit.

August 1, 1923

E. L McHaney, of Little Rock, Ark., William H. Martin, of Hot Springs, Ark., and Eugene Blodgett, of St. Louis, Mo. (Martin, Wootton & Martin, of Hot Springs, Ark., Murphy McHaney & Dunaway, of Little Rock, Ark., and Blodgett, Rector & Pierce, of St. Louis, Mo., on the brief), for plaintiff in error.

Charles F. Cole, U.S. Atty., of Batesville, Ark. (Robert E. Fuhr Asst. U.S. atty., of Paragould, Ark., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges.

LEWIS Circuit Judge.

Plaintiff in error, Shaw, was convicted and sentenced on two counts of an indictment which charged that he, while agent and officer of the Citizens' National Bank of Hot Springs, Ark., did in April, 1921, make certain false entries in a book of the bank known as the register of certificates of deposit, with intent to deceive the officers of the bank and any agent appointed to examine its affairs, and to injure and defraud the bank; that in June, 1921, being such agent and officer he received and took into his possession by virtue of his position certain moneys to the amount of $6,340.00, which he embezzled and converted to his own use. The indictment sets out in detail the entries and wherein they were false. The falsity as to each of the thirty certificates designated by number consisted, as charged, in entering upon the register a less sum than that for which the certificate was issued. These instances taken from the list of certificates embodied in the charge will illustrate:

Number Amount Certificate

Certificate. Entered. Issued for.

49182 $199. $299.

49203 130. 280.

49218 450. 700.

49401 500. 750.

49463 689.90 889.80

The total amount of the thirty issued certificates was $14,228.30 as shown on the register, but in fact the total as shown by the certificates themselves was $20,568.30.

The other charge, of embezzlement, was an appropriation by Shaw of the difference between the two amounts.

Of the ten specifications of error eight are directed to the action of the court in admitting and refusing to strike out testimony given by witnesses William R. Young, Ellis E. Young and Claude E. Marsh. Shaw was an employe in the bank for about eight years. He testified that he resigned on June 12 1921, and quit the bank's service. The president testified that he was discharged on June 18. At the time he went out, and for some time theretofore, he had charge of the book in which was kept a record of the certificates of deposit, known as the register, and also of the book containing entries of savings accounts. As a rule, and with few exceptions, he received the money for certificates of deposit and issued the certificates and entered the transaction in the register. He also paid the issued certificates, sometimes the full amount at once and sometimes in partial payments. In that department he was known as both receiving and paying teller. A few days after his relations with the bank ceased he went to St. Louis, returned to Hot Springs on June 28, and on the night of that day the bank was entered and the register of certificates of deposit and the book containing the savings accounts and other bank books were stolen and carried away, and none of them have been found or returned. The combination of the lock on the safe in which the stolen books were kept had not been changed after he went out, nor had the key to the bank, carried by Shaw, been surrendered by him. William R. Young, national bank examiner, made an examination of the bank in January, 1921. He was assisted by his son, Ellis E. Young. The latter, under the supervision of his father, took off a list of the unpaid certificates of deposit from the register. This list was produced at the trial and both father and son gave testimony that it was correct, and that it showed what the register of certificates of deposit showed as to the amount remaining unpaid at that time on each certificate. The certificates themselves were also produced at the trial. All but three of them were issued by Shaw. The three were issued by another employe of the bank during Shaw's temporary absence, but the uniform practice, when that occurred, was to place on Shaw's desk the necessary data so that the transaction might be entered by him. There had been part payments indorsed on twenty of the certificates named in the indictment and those payments, as testified to by both of the Youngs and by Marsh, cashier, were entered on the register as debits against the amount for which the certificate was originally issued. In these instances the memorandum made by Ellis E. Young did not show the original amount for which each of the certificates was issued but only the balance after deducting the amounts that had been paid on them. On the other ten certificates no payments had been made, hence the memorandum showed the original amount appearing on the register as the amount for which each had been issued. Those amounts were severally falsely entered for less than stated in each certificate. The five entries set out above were of that kind. The register had been stolen, it was lost, and the testimony of William R. Young and Ellis E. Young, refreshed by the memorandum, was the best proof obtainable of the contents of the register. Ellis E. Young testified that the register stated as to each certificate the amount for which it had been issued, and the amounts, if any, that had been paid on each.

The objection to their testimony was directed principally to the fact that as to certificates on which partial payments had been made by the bank the memorandum did not show the amounts for which they were originally issued, but showed only the balance due on each, which was arrived at by Ellis by deducting from the original amount of each certificate, as it appeared upon the register, the amounts that the register showed had been paid on each, and it was contended that these balances as to the twenty certificates on which payments had been made were not, of course, entries on the register, and that therefore, as to them, the amounts so named in the indictment were not false entries (were not entries at all) and there was nothing to sustain the charge as to them. Of course, neither of the Youngs could recall the original amount for which each of the twenty certificates had been issued, those amounts not being noted in the memorandum. Conceding all of that to be true, the proof clearly establishes and the brief of counsel for plaintiff in error admits that as to ten of the certificates on which no partial payments had been made the memorandum shows the original amount of each as entered in the register and charged in the indictment as false entries. The ten original certificates produced at the trial each showed that it had been issued for an amount in excess of that shown by the entry in the register. The contention of counsel in that respect amounts to this, that notwithstanding the indictment charged and the proof established beyond question false entries on the register as to ten of the certificates, yet the charge against defendant that he made false entries on the register must fail because the charge that he made twenty other false entries as to the twenty other certificates has not been proven to be true. A statement of the proposition carries its own refutation. For a finding on competent and convincing proof that defendant made a false entry as to any one of the certificates named in the...