Stout v. United States

• Decision Date: 15 November 1915
• Docket Number: 3900.
• Parties: STOUT v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

227 F. 799

STOUT v. UNITED STATES. ^[1]

No. 3900.

United States Court of Appeals, Eighth Circuit.

November 15, 1915

[Copyrighted Material Omitted]

M. C Garber, of Enid, Okl. (Garber & Kruse, of Enid, Okl., on the brief), for plaintiff in error.

Isaac D. Taylor, Asst. U.S. Atty., of Guthrie, Okl. (John A. Fain U.S. Atty., of Oklahoma City, Okl., and W. B. Herod, Asst. U.S. Atty., of Guthrie, Okl., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

Stout was convicted and sentenced for misapplying the moneys and credits of the First National Bank of Cherokee, Okl., of which he was president, to the use and benefit of the Cherokee Mill & Elevator Company. Rev. St. Sec. 5209 (Comp. St. 1913, Sec. 9772).

He urges here that the fifth count of the indictment under which alone conviction was had does not charge a public offense. We think it does. In the prolixity of words there is plainly discernible the substance of a charge that the accused, whilst president of the bank and by use of the authority of his position, loaned its funds to the mill company, which was known by him to be hopelessly insolvent, not so known to the bank or its directors, and under circumstances naturally leading to the loss of the money loaned, and so resulting-- all with intent to injure and defraud the bank. This, with the details set forth, sufficiently states an offense under the statute.

It is also contended that the evidence was not sufficient to prove the offense. The question here is not whether we regard the proof as having been made beyond a reasonable doubt. That measure was for the jury; on appeal, the inquiry is whether the verdict of guilt was supported by substantial evidence. We think there was substantial evidence of all the essential facts of the case against the accused. As to some a different conclusion might perhaps have been drawn, but there was direct evidence upon them which was fairly submitted to the jury under instructions carefully explaining and guarding his rights; and they found against him. This was particularly so as to the ignorance of the directors of the bank of the financial condition of the mill company to which the bank's funds were loaned, its hopeless insolvency, the true nature of the loans made by the accused, including the one set forth in the fifth count of the indictment, that they were not intended as bills of exchange on which the drawers were to be held, and were not being secured either by mortgage bonds of the mill company, as represented by the accused, or by warehouse or elevator receipts, or by grain or flour held for the purpose. On the other hand, there was no doubt but that the accused was fully informed of the conditions which signified certain ultimate loss to the bank. The jury might well have been convinced that he exercised in fact a dominating control over the business of the bank, and also had much actively to do with the finances of the mill company by way of obtaining loans for it both from his bank and also from other sources from which he secretly received personal compensation. They were also justified in finding the requisite willful, unlawful intent from evidence of his reckless disregard of the bank's interests and welfare and his deception of the directors, in some instances by suppression of the facts and in others by misrepresentations as to the financial condition of the mill company and the security for the loans. There was much testimony on those matters, and the jury were warranted in believing it. One trouble with the arguments for the accused is in the failure to distinguish between the power and the responsibilities of one occupying a position of trust.

Complaint is made of the refusal of the trial court to give certain instructions and of parts of the charge as given. Excepting in two particulars little need be said upon this subject. Some of the instructions requested were substantially embodied in the charge of the court, though not in the precise language of counsel. Others improperly singled out a part of the proof adduced as being insufficient to show guilt or criminal intent. When an instruction asked proceeds upon a recital of facts and circumstances of which evidence has been received, and a deduction is drawn from them which, if adopted by the court, would be practically a direction to acquit, the recital should be full and comprehensive, and not a mere sidelight on the case. One request sought an instruction that the accused was not on trial for various defaults or misconducts which were enumerated. But the charge of the court contained a definite statement of the offense set forth in the fifth count, and that he could not be convicted of something else. It was unnecessary to negative the other matters in detail. The parts of the charge given which are criticized are not objectionable, when viewed as they should be in their proper context.

An instruction was asked that if the loans of the bank to the mill company, of which that specified in the fifth count was one, were pursuant to a custom of the bank, of which the directors, or a majority of them, or of their committee in charge, had knowledge, and assented to, relying upon the wheat purchased by the mill company, with the moneys loaned as sufficient security for repayment to the bank, the accused should be acquitted. The...