United States v. Matot, 55.

• Citation: 146 F.2d 197
• Decision Date: 18 December 1944
• Docket Number: No. 55.,55.
• Parties: UNITED STATES v. MATOT.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

146 F.2d 197 (1944)

UNITED STATES v. MATOT.

No. 55.

Circuit Court of Appeals, Second Circuit.

December 18, 1944.

Philip M. M. Phelps, of Fair Haven, Vt., for appellant.

Joseph A. McNamara, U. S. Atty., and Bernard J. Leddy, Asst. U. S. Atty., both of Burlington, Vt., for appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

Matot appeals from a judgment of conviction under an indictment, charging him as an abettor of one, Holmes, the cashier of a national bank, in the wilful misapplication of the bank's moneys, in violation of § 592 of Title 12, U.S.C.A. The appeal turns substantially altogether upon the exclusion of an offer of testimony by Matot, who took the stand in his own defense. To an understanding of the significance and importance of the ruling, some statement of the facts is necessary. Holmes was in the habit of allowing his friends to draw cheques upon their deposit accounts, when he and they knew them to be insufficient. When the cheques were presented through the clearing house, or were cashed over the counter, Holmes placed them in a drawer in his office, and apparently covered the charges by false entries upon the books. He favored eighty depositors of the bank in this way — Matot among them, 123 of whose cheques he had honored between October 1942 and February, 1943. All these Matot had drawn when his deposit was not large enough to meet them — the total overdraft being over $4,000. He had been a director of the bank between 1915 and 1929, his secretary had often told him that his account was overdrawn, and he himself acknowledged that he knew it was. He also owed the bank $6,000 upon notes, the limit of his credit. Nevertheless, he was a man of substance in the Town of Poultney, where the bank was, engaged in a business of quarrying slate, which he had inherited from his father. There was no reason to suppose that he could not have amply responded to all his indebtedness to the bank.

After Holmes's defalcations were discovered in February of 1943, the bank's directors called Matot before them and asked him to make good the overdrafts. He said that he would make arrangements to do so and also to pay his notes. His testimony to this interview the judge admitted; but he excluded an interview, three or four days later, between Matot and the bank's president, his testimony as to which would have disclosed that he suggested to the president the immediate sale of some of his real estate, and that the president urged him not to sell it at a sacrifice.

We read the words, "with intent in any case to injure or defraud such Federal reserve bank," as limiting all of § 592 that goes before: that is, as not confined to the making of false entries. Perhaps that construction is unnecessary, for "wilful misapplication" of money presupposes a fraudulent intent, as does "embezzlement"; and, although "abstraction," standing alone, might perhaps be read otherwise, the context...