United States v. Breese

• Decision Date: 01 July 1904
• Citation: 131 F. 915
• Parties: UNITED STATES v. BREESE.
• Court: U.S. Court of Appeals — Fourth Circuit

131 F. 915

UNITED STATES v. BREESE.

United States District Court, W.D. North Carolina.

July, 1904

A. E Holton, U.S. Atty., and A. H. Price, Asst U.S. Atty.

H. C Jones, F. I. Osborne, J. S. Adams, Thos. S. Rollins, and Chas. A. Moore, for defendant.

KELLER District Judge (orally charging jury).

Gentlemen of the jury, when I assumed the position that I now hold, I took upon myself a solemn obligation to the effect that I would administer justice without respect to persons, and do equal right to the poor and to the rich, incumbent upon me according to the best of my ability and understanding agreeably to the Constitution and laws of the United States. It is with reverent spirit, and with the idea of fulfilling that obligation to the best of my ability, that I approach this last and most important duty of mine in connection with this long and important trial. The time is fast approaching when you, too, will be called upon to discharge the last and most important duty that you have in regard to this trial.

The office of the jury is an ancient, honorable, and highly important one. To it is committed the sole and final judgment of the facts of the case. This is no idle fiction of law, and I desire to emphasize the point that you gentlemen, are the sole judges of the facts; and, while I shall not intentionally intimate any opinion whatever upon any disputed matter of fact in this case, yet, if I should inadvertently do so, I desire that it shall not influence your action in the slightest degree. You are sworn to well and truly try the defendant, and a true verdict render according to the evidence, and the tenor of the oath indicates the frame of mind in which you should approach your duties. No prior impressions, no public clamor against the defendant, no pity or sympathy for him, or for those whom his acts may be alleged to have injured, should for one moment have place in your minds; but calmly, dispassionately, as citizens of the United States, discharging a most solemn duty of citizenship, sworn to render a true verdict, you should examine and weigh the evidence in this case in the light of the instructions given you as to the law in this charge, and let your lips utter the verdict that your honest thought inspires.

As I have said, gentlemen, I am sworn to discharge my duty according to the best of my abilities, and shall give you in this charge the law applicable to this case, as I understand it; and it is your duty to receive it as the law of the case, and to apply it to the facts as you believe them to be.

It is the ordinary practice, and is perhaps wise, that the last word to the jury should be from the court. Counsel, in the earnestness of endeavor to serve well their clients, press their respective contentions, enforced by passionate appeal and ingenious argument; and, while it is right and proper for the jury to consider and weigh these arguments of counsel, in so far as they are based on the evidence, yet a last, dispassionate statement of the considerations of law which must guide the jury in their determination of their judgment upon the facts of the case seems wise and right. And at this juncture I take occasion to say that counsel on both sides of the case, first for the defendant, and then for the government, referred in their arguments to matters connected with the former trials of this case. I desire to withdraw these remarks from the consideration of the jury, and to say to you that you are trying this case and are to try it just as if it were being heard for the first time, and any considerations of former trials are not before you, and are not to be considered by you.

Before adverting at all to the indictment in this case, I desire to call your attention to one or two general and fundamental rules of law which are applicable to all cases where a brother man is tried for the commission of a criminal offense:

First. Under the law of our land, every person accused of crime is presumed to be innocent; and I instruct you in this case that the defendant is presumed to be innocent of the charges in the indictment, and that this presumption continues in his favor throughout the trial, the same as though it had been testified to as a matter of evidence, and it can only be overcome by evidence which satisfies you beyond a reasonable doubt of the defendant's guilt.

Second. The burden of proof is on the government to satisfy your minds, by legal and competent evidence, 'beyond a reasonable doubt,' of the guilt of the defendant upon one or more of the offenses charged in the indictment; and the evidence in the case must be so conclusive that, taking it all together, it cannot be reasonably reconciled with the theory of the defendant's innocence.

A reasonable doubt is an honest, substantial doubt, actually existing in your minds, and arising either from evidence favorable to the defendant, or from a want of evidence on behalf of the government. It is not merely such a doubt as may be conjured up in the mind of one desirous of escaping the responsibility of decision, or such as may be engendered by pity or sympathy for the accused.

The indictment in this case is drawn under the provisions of section 5209 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3497), which reads as follows:

'Every president, director, cashier, teller, clerk or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association, or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment or decree, or who makes any false entry in any book, report or statement of the association, with intent, in either case, to injure or defraud the association, or any other company, body politic or corporate or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.'

There are, as you will observe, a number of distinct offenses enumerated in this section, but in the indictment in this case only three of these have been charged against the defendant, William E. Breese. The defendant is charged with having (1) embezzled, (2) abstracted, and (3) willfully misapplied moneys, funds, and credits of the First National Bank of Asheville, with intent to injure and defraud the association and other persons to the grand jurors unknown. The indictment contains sixty-six counts, founded upon twenty-two separate transactions, each of which has been made the subject of three separate counts-- one for embezzlement one for abstraction, and one for willful misapplication of the moneys, funds, or credits of the bank. Thus the first count charges the defendant, as president of the bank, with having on January 7, 1897, embezzled the sum of $351 of the moneys, funds, and credits of the bank, and converted the same to his own use, with intent to injure and defraud the First National Bank of Asheville, and other persons to the jurors unknown. The second count charges the abstraction of the same amount on the same day by means of a check drawn by the defendant on the First National Bank of Asheville to the order of 'Cash Memo.' The third count charges the willful misapplication of the same amount on the same day, and by the same means. I have kept a memorandum of the charges made in the counts, and, if I have it correct, the remaining counts are, in substance, as follows: The 4th, 5th, and 6th counts are based upon a check for $100 drawn to the order of W. H. Westall, and dated January 7, 1897. The 7th, 8th, and 9th counts, upon a check drawn to the order of 'Cash Memo.,' dated January 21, 1897. The 10th, 11th, and 12th upon a check for $156 drawn to the order of Robt. U. Garrett, and dated January 21, 1897. The 13th, 14th, and 15th, upon a check for $25 drawn to the order of 'Cash,' and dated February 9, 1897. The 16th, 17th, and 18th, upon a check for $44.59 drawn to the order of Thomas Lawrence, and dated February 11, 1897. The 19th, 20th, and 21st, upon a check for $50 drawn to the order of 'Self,' and dated February 18, 1897. The 22d, 23d, and 24th upon a check for $100 drawn to the order of 'Self,' and dated February 22, 1897. The 25th, 26th, and 27th upon a check for $169.84 drawn to the order of 'Cash Memo,' and dated March 9, 1897. The 28th, 29th, and 30th upon a check for $68 drawn to the order of 'J. D. Church, General Agent,' and dated March 4, 1897. The 31st, 32d, and 33d, upon a check for $680.15 drawn to the order of 'W. H. Penland, Cashier,' and dated March 24, 1897. The 34th, 35th, and 36th, upon a check for $100 drawn to the order of 'Mrs. M. A. E. W.,' and dated April 7, 1897. The 37th, 38th, and 39th, upon a check for $176.19; and my memorandum does not state in whose favor it was drawn, but the fact that it was in full or part payment of Veorhoff's draft, and dated May 7, 1897. The 40th, 41st, and 42d, upon a check for $111, Mrs. Anna R. Cartmell, dated May 27, 1894. The 43d, 44th, and 45th, upon a check for $135.21 drawn to the order of Nordyke, Norman & Co., and dated May 21, 1897. The 46th, 47th, and 48th counts are out of the indictment. No evidence was offered in support of these counts. The 49th, 50th, and 51st are based upon a check for $74.39 payable to the order of Powell & Snyder, and dated June...