United States v. Harper

• Citation: 33 F. 471
• Parties: UNITED STATES v. HARPER.
• Decision Date: 01 January 1887
• Court: U.S. District Court — Southern District of Ohio

33 F. 471

UNITED STATES v. HARPER.

United States Circuit Court, S.D. Ohio, Western Division.

October Term, 1887

[Copyrighted Material Omitted]

William B. Burnet, U.S. Atty., J. E. Bruce, Asst. U.S. Atty., and Henry Hooper, for the Government.

Charles H. Blackburn and Moses F. Wilson, for defendant.

JACKSON J., (orally charging jury, SAGE, J., concurring.)

In order that you may be the better able to apply the facts established by the proof to the law governing this case, it is proper that the court should first give you some brief explanation or definition of the several offenses with which the defendant stands charged, before referring to the testimony relating to the several transactions embraced in the indictment, on which the defendant, Edward L. Harper, is being tried. He is charged with having done various acts, and committed various offenses, as vice-president, director, or agent of the Fidelity National Bank, of Cincinnati, Ohio, in violation of section 5209 of the Revised Statutes of the United States, which provides as follows:

'Sec 5209. 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 such 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 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.'

The first, third, and fourth clauses of the statute describe several distinct and separate acts, which are made misdemeanors when committed by any president, director, cashier, teller, clerk, or agent of any national banking association. It is unnecessary to notice or enumerate all the different acts which the section describes and makes criminal. It will be sufficient to direct your attention only to those offenses with which the defendant stands charged. The indictment, while containing a large number of counts, charges the defendant with only five of the criminal acts enumerated and described in the statute. He is charged with having embezzled, with having willfully misapplied, and with having abstracted the moneys, funds, and credits of the Fidelity National Bank, and converted the same to his own use; and with having issued and put in circulation certificates of deposit, without the authority of the directors of the bank, with intent to injure and defraud the bank; and with having made, or caused to be made, false entries on the books of said bank, with intent to deceive its officers, and to defraud the association while he was acting as vice-president and director of the same. Each of these acts is made a separate and distinct offense under section 5209, which I have just read.

As there is only a single charge relating to the first of said offenses,-- the crime of embezzlement,-- that will be first noticed. By the second count of the indictment it is charged in substance that the defendant was vice-president and agent of the Fidelity National Bank of Cincinnati, an association duly organized and established under the laws of the United States, and doing a banking business in the said city of Cincinnati; that at various times between the first of October, 1886, and the twentieth of June, 1887, the said defendant as vice-president, director, and agent as aforesaid, 'did, by virtue of such employment, and while so employed as aforesaid, receive and take into his possession large sums of money and funds of the aforesaid Fidelity National Bank, and which he held for and in the name of and on account of said association, and that he did unlawfully embezzle and convert to his own use certain portions or parts of said funds, moneys, and credits of the said association, to-wit, $2,000,000, with the intent there and then and thereby to injure and defraud the said Fidelity National Bank,' etc. This is a sufficient description of the offense. The term 'embezzle,' as used in this count of the indictment, and in the statute, is a word having a technical meaning, which the court will endeavor to explain, so that you may the better determine whether the proof before you brings the defendant's act or acts within the scope of that meaning. The crime of embezzlement is a species of larceny. It is especially applicable to the unlawful conversion of property by clerks, agents, and servants, acting in fiduciary or trust capacities, and, under the statute above quoted, by a president, director, cashier, teller, clerk, or agents of any national banking association. It involves two general ingredients or elements-- First, a breach of trust or duty in respect to the moneys, properties, and effects in the party's possession, belonging to another; and, secondly, the wrongful appropriation thereof to his own use. In order to constitute this crime it is necessary that the property, money, or effects embezzled should have previously come lawfully into the hands, possession, or custody of the party charged with such offense; and that, while so in his possession and custody, held for the use and benefit of the real owner, he wrongfully converted the same to his own use. In other words, there must be a actual and lawful possession or custody of the property of another, by virtue of some trust, duty, agency, or employment, committed to the party charged; and, while so lawfully in the possession and custody of such property, the person must unlawfully and wrongfully convert the same to his own use, in order to commit the crime of embezzlement. The difference between the crime of embezzlement and that of larceny may serve to better illustrate what is required to constitute the former offense. In larceny there is the ingredient of an unlawful taking from the possession of the owner with the intent to deprive him of his property, and to wrongfully appropriate the same to the use of the party so taking. The custody or actual possession in larceny is acquired by the party unlawfully, in the act of feloniously taking the owner's property without his consent. But in embezzlement there is no wrongful or unlawful acquisition of the custody or possession of the property embezzled; on the contrary, the party embezzling must be lawfully in possession by virtue of some employment, trust, or agency, under and with the consent of the owner, and while so in possession, holding the property in trust, or for the benefit of the owner, he wrongfully converts the same to his own use. A few practical illustrations may serve better to explain the offense of embezzlement. If your clerk,-- a clerk in your store,-- within the line of his employment, sells your goods to a customer, and receives the price therefor, and, while holding the money thus received, even on his way to deposit it in the cash-drawer or to deliver it to his employer, he converts it to his own use, or any portion thereof, this would constitute embezzlement. Now, if after having received the money from a customer, the clerk should deliver it over to his employer, or cashier authorized to receive it for him, and should thereafter secretly take the same identical money from the employer's pocket or the cashier's drawer, with the intent to appropriate it to his own use,-- that would be larceny. You send your hired man to the city or depot with a load of corn; the property is yours, but it is lawfully for the time being in the possession of the hired man as your agent, to hold and deliver for you, for your use and benefit, according to your directions; instead of executing his duty, he converts or appropriates all or any portion of the corn to his own use,-- this would be embezzlement. If he should surreptitiously take from your crib corn, with the possession of which he had not been previously intrusted, his offense would be larceny. If the general book-keeper of a bank, having no general or special custody or possession of the funds of the bank, secretly takes from the safe or drawer of the receiving or paying teller moneys of the bank, with the intent to appropriate the same to his own use, he commits an act of larceny. If, however, the teller-- receiving or paying teller-- in whose custody the moneys of the bank are placed by virtue of his employment or duty takes the same amount from his drawer, and converts the same to his own use, he would commit the crime of embezzlement. These instances will serve to illustrate the principle which you should keep in mind and apply in considering the charge of embezzlement against the defendant.

It must appear from the evidence that the moneys, funds, credits, or assets of the association, alleged to have been embezzled were, previously to their wrongful appropriation, lawfully in the possession and custody of the defendant, and that they were, while so held by him, wrongfully converted to his own use, in order to constitute this offense. If the evidence establishes that the business and assets of the bank were actually or practically intrusted to the care and management of the defendant, so that, by virtue of his position as vice-president,...