O'Shea v. United States, 7620.

• Decision Date: 07 December 1937
• Docket Number: No. 7620.,7620.
• Citation: 93 F.2d 169
• Parties: O'SHEA v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

93 F.2d 169 (1937)

O'SHEA v. UNITED STATES.

No. 7620.

Circuit Court of Appeals, Sixth Circuit.

December 7, 1937.

John R. Watkins, of Detroit, Mich. (David Polasky, of Detroit, Mich., on the brief), for appellant.

Frank G. Schemanske, of Detroit, Mich. (John C. Lehr, of Detroit, Mich., on the brief), for the United States.

Before HICKS and ALLEN, Circuit Judges, and NEVIN, District Judge.

HICKS, Circuit Judge.

From April, 1933, to January 14, 1936, appellant was assistant vice president of the National Bank of Detroit (a member of the Chicago Federal Reserve Bank), and from the last-mentioned date until March 15, 1936, he was vice president. He was convicted upon all counts (eighteen in number) of an indictment charging him with misapplication of the funds of the bank. The moneys misapplied were on deposit to the credit of the "City of Detroit Trust Fund" and totalled $241,950.

In count 1 the misapplication is alleged to have been accomplished by the use of a certified check in the sum of $32,000 carrying the forged indorsement of W. J. Curran, comptroller of the city of Detroit, and the indorsement of H. M. Tyler, an employee in the office of the comptroller.

In count 2 the misapplication is alleged to have been accomplished by the use of a check in the sum of $14,000 drawn upon the trust fund account and carrying the forged signature of W. J. Curran, comptroller, as payee, the forged indorsement of W. J. Curran, comptroller, and the genuine indorsement of H. M. Tyler.

In the remaining counts the misapplication is alleged to have been accomplished as in count 2, the only difference being in the dates and amounts of the checks.

No question is raised as to the sufficiency of the evidence to support the verdict upon the first count, and the judgment thereon must be affirmed unless there was prejudicial error in the introduction of testimony.

It is urged that appellant was entitled to a directed verdict upon counts 2 to 18, because there was no competent evidence that the signatures of W. J. Curran, comptroller, as payee, and the indorsements of W. J. Curran, comptroller, upon the reverse side of the checks were forgeries as alleged. If this position is not sustained and if there is no reversible error in the introduction of other testimony, the judgment upon these counts must likewise be affirmed.

The checks described in counts 2 to 18 were not introduced in evidence. Appellee supplied their contents by secondary evidence upon the ground that they were not procurable. Appellant's point is that appellee did not make a sufficient showing of its inability to produce the checks to justify the introduction of the secondary evidence. This was a matter to be determined by the judge in the exercise of his discretion, and by "discretion" of course is meant judicial discretion.

These checks, together with the bank statements reflecting their payment, were delivered either personally or by messenger to H. M. Tyler, by direction of appellant, who had general supervision over the trust fund account. They were important links in the chain of circumstances tending to implicate both appellant and Tyler in the losses from the Detroit Trust Fund deposits. When the losses were disclosed, Tyler killed himself. There is a reasonable inference that he destroyed the checks — at least they were never found. In due course they should have been found in the check files of the city treasurer's office. A thorough but ineffectual search was made through all the check files, desks, and records of that office where they might possibly have been.

On March 13, 1936, the day following Tyler's death, a search of his desk and room in the comptroller's office was instituted and was not completed for several days. Canceled checks on the trust fund account were looked for especially but none were found. Upon such showing there was no error in the admission of secondary evidence of the contents of the checks described in counts 2 to 18. The admission of this secondary evidence, before the court finally concluded that it was the best evidence the nature of the case would admit of, cannot be regarded as prejudicial.

Upon the hypothesis that the loss of the checks had not been sufficiently established, appellant insists that the introduction of certain records of the bank, to wit, tellers' blotters (Exhibits 39-45, 50-59) and permanent ledger account sheets (Exhibits 66-68, 70-78, 80-85) as secondary evidence of their contents, was error. But these blotters and ledger sheets were original records of the bank made in due course of business. The blotters were identified by the tellers who made them and the ledger sheets by the officer who had them in charge. These records were competent as such, the blotters as tending to show that the checks had been cashed, and the ledger sheets that the face amounts of the checks had been withdrawn from the trust fund deposit. See Act No. 15, Pub.Acts Mich.1935; Johnson v. U. S., 89 F.2d 913, 915 (C. C.A.6); American Surety Co. v. Pauly, 72 F. 470, 478 (C.C.A.2).

For the same reason, permanent ledger sheet Exhibit 69 was admissible. It was an original record and relevant to the issues under count 1.

It is urged that certain carbon copies of interoffice memoranda (Exhibits 3, 4, 5, 20, 21, 22, 23 and 24) were inadmissible because the showing that the originals were not procurable was insufficient. Treating these carbons as copies, the originals were addressed and delivered to appellant personally or left upon his desk. The Fifth Amendment protected him against any demand upon him in the presence of the jury to produce the originals McKnight v. U. S., 115 F. 972, 976 (C.C.A.6), and the copies were therefore the best available evidence of the contents of the originals. To support their introduction, evidence was introduced of a diligent search not only of appellant's desk but of the records and files of the bank. There was therefore no error in the introduction of the copies, even treated as secondary evidence.

But carbon copies may not necessarily be treated as secondary. They are not copied from the originals, but they and the originals are made by one mechanical operation. The carbons are nothing more, nor less, than duplicate originals. Wharton's Criminal Evidence, vol. 1 (10th Ed.) p. 385.

Mercedes Dimmer testified that she was employed by appellant as secretary from some time in 1930 until March, 1932, when she resigned; that in December, 1934, she opened a brokerage account at the request of appellant;...