U.S. v. Folsom
| Decision Date | 04 September 1894 |
| Citation | 38 P. 70,7 N.M. 532,1894 -NMSC- 007 |
| Parties | UNITED STATES v. FOLSOM. |
| Court | New Mexico Supreme Court |
Appeal from district court, second district; before Justice Collier.
Stephen M. Folsom was convicted of making false entries in books of a national bank, and appeals. Affirmed.
F. W Clancy and Neill B. Field, for appellant.
J. B H. Hemingway, U.S. Atty., and H. B. Fergusson, Special Counsel, for the United States.
The appellant, Stephen M. Folsom, was indicted in the district court for the second judicial district, at the March term 1894, upon four indictments, containing, respectively, 4, 13, 4, and 17 counts. The first indictment, the first 6 counts of the second indictment, the third indictment, and the first 10 counts of the fourth indictment relate to alleged false entries made by defendant, as president of the Albuquerque National Bank, in reports to the comptroller of the currency of the condition of said bank on the days in the call for such reports named; and the remaining 7 counts in each of the second and fourth indictments are as to alleged false entries made in the books of said bank as of its business on the 9th day of July, 1891, the seventh count in the second indictment charging the same offense as the eleventh in the fourth indictment, and so on successively to the thirteenth count in the second and to the seventeenth in the fourth indictment, making 14 counts in the two charging only seven offenses. The first, second, and fourth of these indictments were on the motion of the prosecution, over the objection and exception of the defendant, consolidated, and directed to be tried as one case; and the defendant, stating that he in no way waived his exception to the consolidation of the other three, moved that the third be consolidated, which was ordered. On the four indictments thus consolidated as one case the defendant was put on trial, and at the close of the testimony of the prosecution, moved for an instruction of not guilty as to each and every count, which motion was sustained as to all counts in said indictments which related to false entries in reports to the comptroller; and the court, permitting the prosecution to reopen as to alleged false entries in the books of said bank, denied the motion of defendant as to those counts. In passing upon said motions and in the instructions when submitting the case to the jury, the court instructed that no testimony as to alleged false reports was to be considered by them, except that they might weigh the testimony as to the making of the reports of the bank's business as of July 9, 1891, as relating to the intent of the defendant in making such false entries on the books of the bank as of said day, if they should find any false entries were so made. The prosecution was then permitted to introduce evidence to show that a report for the bank's business of said July 9, 1891, was called for by the comptroller. The testimony remaining before the jury for their consideration referred to the corporate existence of the Albuquerque National Bank as a national bank, to the defendant as its president, on the 9th day of July, and subsequently, 1891, and to a report and call for his business on said day, and to the action of the defendant, after such call, causing the books of the bank to be changed by the insertion of items in the business of said 9th day of July, 1891, six of said items being set back from the business of said bank on the 11th day of July, 1891. The said items consisted of four charges against other national banks, aggregating $30,000, and a credit to another national bank of $7,000, and a credit to said bank of certificates of deposit of $20,000, all of which were shown by undisputed evidence to represent actual transactions of said bank, occurring, as shown by evidence, to be as of said July 11, 1891. The seventh item related to the entry of a charge against the New Mexico Savings Bank & Trust Company of $15,000, as to which there was proof to show that defendant directed on July 21, 1891, a clerk of his bank to insert said item of $15,000 on the day's business of July 9, 1891, so as to make it appear that said savings bank was indebted to the Albuquerque National Bank in the said amount of $15,000. The said defendant also directed the said clerk to make counter entries as to the said seven entries in the business of July 10, 1891. The $15,000 item represented no actual transaction. The said clerk was thereupon directed by the said president to prepare a report for transmission to the comptroller of the business of the bank of July 9, 1891, as the said business appeared with the said seven entries so placed, as heretofore represented, by the direction of the said president on about the said 21st day of July, 1891. The said clerk accordingly prepared said report, which was duly signed by the cashier, and attested by the defendant and two others as directors of said bank, and transmitted in due course of mail to the comptroller of the currency. Defendant testified in his own behalf that he made arrangements in Kansas City as to all the items except the $15,000, relating to the New Mexico Savings Bank & Trust Company, and telegraphed to the Albuquerque National Bank on the same day, upon which he made said arrangements in relation thereto; that, when he returned home, he found these items on the books of the bank as of the 11th day of July, and directed them to be set back to July 9, 1891, because he believed that the arrangements were actually consummated on said 9th day of July; that he did not remember having any connection whatever with the $15,000; and that he had given the said clerk no direction in reference thereto. The prosecution, in rebuttal, put in evidence letters of the defendant showing that no arrangement was completed as to said six items until July 11th, the said defendant not having arrived in Kansas City until July 10th. A large amount of expert and documentary evidence was introduced relating to the books of the bank and its business. The case was argued, and instructions given, and, upon the 14 counts upon which the case was submitted, a verdict of guilty was returned by the jury. Motions for a new trial and in arrest of judgment were made and overruled, and the case is now before this court upon appeal and numerous assignments of error, relating to the instructions of the court, to the disqualification of two jurors upon said jury by virtue of their age, to the action of the court in permitting the prosecution to reopen the evidence for the introduction of testimony as to a demand for a report by the comptroller, and upon the further ground that there was no testimony to support the verdict of the jury. Error is also claimed as to the action of the court in consolidating said seven indictments, and directing trial upon them as one case. In considering this case, we will direct ourselves to the assignments of error in an order inverse to that in which they are set forth in the foregoing statement.
The question of consolidation of indictments ceases, in our opinion, to be a practical question in this case, by reason of the court below instructing the jury to consider only the counts relating to alleged false entries in the books of the Albuquerque National Bank, and directed, and there was accordingly returned, a verdict of not guilty as to the other counts. The 14 remaining counts were, in effect, one indictment. The seven charges in the one indictment were duplicated in the other indictment, which amounts to a pleading of the same matter twice. The instructions carefully guarded the defendant from all prejudice as to said unnecessary pleading. We do not, however, desire to be understood as intimating that any error was committed in the order of consolidation, or in entering upon the trial of said four indictments as one case. The offenses charged in all the indictments are of a like nature, and, we think, could have been presented in one indictment. One of the indictments, to which there was no demurrer or objection, embraced the only two classes of offenses which the four covered; and our view is that the four, being consolidated, became one indictment for trial, and it was fully within the discretion of the court, both to avoid unnecessary costs and undue vexation of the accused by multiplicity of prosecutions, to require only one trial upon all the charges on three of the indictments which were, on motion of the prosecution, consolidated, together with the fourth, added on motion of the defendant. This discussion we consider to have been definitely settled in Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909. See, also, section 1024 of the United States Revised Statutes, which we consider in operation in this territory in the trial of cause arising under the laws of the United States.
In this connection we may briefly advert to the contention of appellant's counsel that, because of the limitation of two years, as prescribed by the territorial statute, to this class of offenses, instead of three years, as fixed by the laws of the United States, this offense is barred. We think that our conclusion, heretofore set forth, that section 1024 Rev. St., applies to trials of causes arising under the laws of the United States, leads to the further conclusion that the United States limitation law governs him, rather than that of the...
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