United States v. Kenney

• Citation: 90 F. 257
• Parties: UNITED STATES v.KENNEY.
• Decision Date: 22 July 1898
• Court: U.S. District Court — District of Delaware

90 F. 257

UNITED STATES v.KENNEY.

United States Circuit Court, D. Delaware.

July 22, 1898

[Copyrighted Material Omitted]

Lewis C. Vandegriff, U.S. Atty.

George Gray and Levi C. Bird, for defendant.

BRADFORD District Judge (charging jury).

The indictment, as it now stands, charges the defendant, Richard R. Kenney, with violating section 5209 of the Revised Statutes of the United States. That section is 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 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,' &c.

The words 'any association,' as used in section 5209 above quoted, relate to any national banking association organized under the laws of the United States. The First National Bank of Dover, in this District, is admitted to be and to have been at the time of the alleged commission by the defendant of the offenses specified in the indictment, such an association. The indictment against the defendant as returned by the grand jury originally contained twenty-five counts, numbered serially. A number of the counts have been either disposed of on demurrer or abandoned by the District Attorney, and are not for your consideration. The counts remaining for your consideration are counts numbered ten, eleven, twelve, thirteen, seventeen, and eighteen. You will bear in mind the numbers of the counts just mentioned which are for your consideration in order to avoid confusing any of them with other counts originally contained in the indictment. I repeat, to aid your recollection, and prevent any misunderstanding on your part, that the counts which remain open for your consideration are counts numbered ten, eleven, twelve, thirteen, seventeen and eighteen. These counts are before you in connection with the evidence applicable to them, and embrace all the issues which are for your determination. The counts numbered ten, eleven, twelve and thirteen, charge in substance that the defendant did, with intent to injure and defraud The First National Bank of Dover, wilfully, unlawfully and fraudulently aid and abet William N. Boggs, who was the teller, wilfully, unlawfully and fraudulently to misapply the moneys of that bank for the use, benefit and advantage of the said William N. Boggs, he, William N. Boggs, having the intent through such misapplication to injure and defraud the bank. The remaining counts, namely, counts numbered seventeen and eighteen, charge in substance that the defendant did, with intent to injure and defraud The First National Bank of Dover, wilfully, unlawfully and fraudulently aid and abet William N. Boggs, who was the teller, wilfully, unlawfully and fraudulently to misapply the moneys of that bank for the use, benefit and advantage of the defendant, he, William N. Boggs, having the intent through such misapplication to injure and defraud the bank. In order to warrant a conviction of the defendant under all or any of the counts numbered ten, eleven, twelve and thirteen, all of the essential ingredients of the offense as charged therein, must have been established to your satisfaction beyond a reasonable doubt. Under these counts it is necessary, in order to find a verdict of guilty, that you shall be satisfied that William N. Boggs, who was teller, wilfully, unlawfully and fraudulently misapplied, as therein charged, moneys of The First National Bank of Dover, for the use, benefit and advantage of the said William N. Boggs, and with intent on the part of William N. Boggs to injure or defraud the bank; and further, that the defendant, with like intent to injure or defraud the bank, wilfully, unlawfully and fraudulently aided or abetted William N. Boggs, as such teller, in effecting such wilful misapplication. In order to warrant a conviction of the defendant under eight count numbered seventeen or count numbered eighteen, all of the essential ingredients of the offense as charged therein must have been established to your satisfaction. Under these counts it is necessary, in order to find a verdict of guilty, that you shall be satisfied that William N. Boggs, who was teller, wilfully, unlawfully and fraudulently misapplied as therein charged, moneys of The First National Bank of Dover, for the use, benefit and advantage of the defendant, with intent on the part of William N. Boggs to injure or defraud the bank; and further, that the defendant with like intent to injure or defraud the bank, wilfully, unlawfully and fraudulently aided or abetted William N. Boggs in effecting such wilful misapplication. There is uncontradicted evidence, and it is admitted by the counsel for the defendant, that William N. Boggs, at the time of his flight from Dover on May 29, 1897, was a defaulter to the amount of $107,000, and that that sum represented moneys of The First National Bank of Dover which he had as receiving and paying teller of that bank unlawfully embezzled, abstracted and misapplied, in violation of section 5209 of the Revised Statutes of the United States. It also appears from uncontradicted testimony in the case that within a few days after the flight of William N. Boggs, his defalcation was discovered by the officers of the bank, and upon subsequent investigation ascertained to amount to the above mentioned sum. Irving D. Boggs, who was bookkeeper of the bank, testified to the effect that its individual ledger contained entries showing balances due from time to time to the defendant as one of its depositors, and also overdrafts by the defendant from time to time as a depositor; and further that he, Irving D. Boggs, had no knowledge of the alleged fraudulent checks drawn by the defendant upon the bank, until after the flight of William N. Boggs. Irving D. Boggs further testified that whenever he received a deposit from any depositor of the bank he did contemporaneously and truly enter in his own handwriting the amount thereof in the individual ledger to the credit of the depositor; and further that when William N. Boggs, as teller, reported to him, Irving D. Boggs, the amount of any deposit which he, William N. Boggs, had received, he, Irving D. Boggs, would in like manner enter the amount thereof in the individual ledger to the credit of the person so reported by William N. Boggs to have made such deposit; and further that the usual though not invariable course was for him, Irving D. Boggs, to correctly make entries in the individual ledger directly from an inspection by him of the deposit slips. William N. Boggs testified to the effect that whenever any deposit was made by or on account of the defendant, he either correctly reported that amount to Irving D. Boggs, the bookkeeper, for entry in the individual ledger to the credit of the defendant, or in case of the absence of Irving D. Boggs, truly and accurately made such entry in the individual ledger himself; and further, that with the exception of four deposits specified by him, such entries were made in the individual ledger contemporaneously with the deposits. The four deposits which were not entered in the individual ledger contemporaneously with their receipt, were as follows, as testified to by William N. Boggs. On June 20, 1896, there was a deposit of $100, which was not credited to the defendant in his account in the individual ledger until three days thereafter. On July 23, 1896, there was a deposit of $1386.50, which was not credited to the defendant in his account in the individual ledger until two days thereafter. On December 7, 1896, there was a deposit of $188.85, which was not credited to the defendant in his account in the individual ledger until four days thereafter. And on February 2, 1897, there was a deposit of $725, which was not credited to the defendant in his account in the individual ledger until three days thereafter. T. Edward Ross, the expert accountant, testified to the effect that the balances as shown in the deposit book of the defendant whenever the deposit book was settled agreed with the balances as shown in the individual ledger, and that the deposits agreed except in four instances; which correspond exactly with the four deposits withheld as testified to by William N. Boggs. It appears from the testimony of William N. Boggs and Irving D. Boggs that not taking into consideration checks alleged to have been fraudulently drawn by the defendant upon the bank, the entries in the individual ledger relating to the defendant's account were so carried on as to accurately show, with the exception of the four deposits just mentioned, the true condition of his account as a depositor at all times within the period above mentioned. These entries are before you, not as independent evidence of themselves, but as proper for your consideration in connection with the testimony of William N. Boggs and Irving D. Boggs, as tending, in connection with that testimony, to show the amounts of the balances whether due from the defendant...