United States v. Means

• Citation: 42 F. 599
• Parties: UNITED STATES v. MEANS et al.
• Decision Date: 24 December 1889
• Court: U.S. District Court — Southern District of Ohio

42 F. 599

UNITED STATES v. MEANS et al.

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

December 24, 1889

John W Herron and Henry Hooper, for plaintiff.

Charles W. Baker and Samuel F. Hunt, for defendant Means.

Jackson A. Jordan and Isaac M. Jordan, for defendant De Camp.

HAMMOND J.,

(charging jury.) Obviously, this trial has been one of grave concern to the people of Cincinnati. The defendants have each established, by the best proof, a reputation for honesty and integrity at the time of the transactions involved which is beyond all question. Naturally, this would be so for, without such a reputation, one would not be allowed to occupy the place of president or vice-president of a national bank. Whether honest or dishonest in fact, one admitted to such places must have at least an assured reputation for integrity; and hence it is that the class of offenses denounced by the banking act of congress always concerns men of the highest standing, for none others can become bankers, and employees of banks. This accounts, also, for the very severe penalties attached by congress to a violation of those laws, rules, and regulations made to protect the people of the United States in their use of that national banking system which they have established by law, and which is so useful to them. Congress departs from its usual custom in criminal legislation, and does not permit the court to determine the minimum punishment, but for itself declares that, if men of the high character employed in the national banks shall violate the laws made to protect the system from wrong-doing by those engaged in the trust imposed by it, they deserve, and shall receive, not less than five years' imprisonment. Congress feared that courts might yield to such influences as were improper, and lightly punish reputable men for doing the forbidden acts by which they would desert the important trusts which congress was determined to protect by these penalties. Therefore, to neither court nor jury has been left the power to condone these offenses by imposing nominal or slight punishment, as in other classes of our criminal laws. The act itself is a protest against allowing our sympathy for fallen pride to control our judgment in such cases. Wherefore, the court must caution you that, while we do not come 'with the war-whoop and scalping-knife of savages,' to use the language of counsel, nor without all charity for the misfortunes and mistakes of men, nor, indeed, without a participation in that profound sympathy which we observe pervades this city and shelters the defendants,-- one of them, at least, to an extraordinary degree, because of his eminence in all the relations of life, and his connection with the good people of this city in high places of public and private confidence,-- we do come to do our duty, and, in obedience to the oaths we have taken, 'to administer justice without respect to persons, and do equal right to the poor and to the rich,' and 'a true verdict render, and a true deliverance make, according to the law and the testimony. ' This is the measure of our duty, and this alone. If these defendants are guilty, you must 'a true verdict render,' and say so; if not guilty, likewise 'a true verdict render, and a true deliverance make, ' by saying so. That you will do this bravely and honestly, and with impartiality, this court does not in the least doubt. After all that has been said in the argument, and so well said on both sides, it is not necessary to go over this whole case, in its multitude of details, and to comment upon the testimony in all its bearings; and I shall not attempt that treatment.

The object of the statute, so often read in your hearing, about making false entries, or causing them to be made, is to secure at all times a truthful exhibit of the condition of the bank. The requirement of a report to the comptroller of the currency is intended to secure that supervision of the bank which the government assumes in the interest of the system, and of the people who resort to it on the invitation of the government, when it establishes the system, and promises to protect it by wise legislation. The object of making publication in the newspapers is to inform the public of the exact and true condition of the bank. To falsely represent the facts, and to make a false publication of them, is, undoubtedly, a crime, under this act, no matter if it be done to save the bank. It is the very thing the banker is forbidden to do. That the public shall be truly informed, no matter how disastrous the truth may be to the bank itself, is the command of congress, made in the interest of the public. It is this publicity more than anything else which shall secure fidelity in the administration of the bank. It is the ruin that will come to the bank if mismanagement be published which is relied upon to secure the public, and those interested in the bank, against mismanagement; and therefore the fear of ruin to the bank is no excuse for falsely publishing its condition to the public, and cannot shield the banker from the crime of a false publication.

We are inclined to think also, that it is a crime, under this act, to make a false report to the comptroller, with whatever motive, because there inheres in that act, necessarily, an intent to deceive the agents appointed by him to inspect the bank, if he be not himself such agent, as it may be he is; just as there inheres in the very act of publishing a false statement to the public the statutory intent to injure 'any other company, body politic or corporate, or any individual person,' which phrase is used to mean the public itself; and no given company, body politic or corporate, or individual person need be named or proved as the victim of the injury, as no given 'agent appointed to examine the affairs of the association' need be named as the victim of that particular deceit.

Referring, also, to a former clause of this act, we are inclined to think that, if anything is established by this proof, it is that the directors who entered into the syndicate to purchase the stock of the bank by stripping the bank itself of the money necessary to pay for it, under the circumstances shown here of taking the money under the guise of loans to themselves without any security, or upon inadequate security, were guilty of abstraction or willful misapplication of the funds of the bank. It was this desertion of their trust that brought upon them the dire necessity of making false reports and entries, no doubt; but it furnishes, certainly, no excuse for doing that thing, and makes the doing of it non the less a violation of this law. But, strange to say, neither these defendants, nor those who were jointly concerned in these violations of the statute along with them, have been charged by this indictment with any of the offenses which we have just named, but only with another offense, which, in relation to the facts of this case, is more difficult of proof, and will give you the most trouble. The guilty intention as to those other offenses grows out of the very facts themselves, beyond all question; but, as to that selected for this indictment, the guilty intention is fairly a matter of dispute, and that dispute you must settle here and now. It is about the only dispute in the case. All others are important only by relation to this, and the bearing they will have upon its solution by you. We must therefore caution you that you are not trying these defendants, upon the facts in proof before you, for any wrong-doing as to the funds of the bank, nor any as to the public, by deceiving it by the publication in the newspapers, nor any as to the comptroller or his agents, however clearly, to your minds, the facts may establish those offenses. But you are to try only the question whether the false report or the false entries in the books which have been named in the indictment, and so often repeated to you in the argument, were made with intent to deceive any officer of the bank. The line of demarkation here must be clearly drawn by you; and you must not allow your verdict to convict the defendants of any other offense that that charged, however clearly you may see those other offenses in the facts of this case. With this necessary caution, we will now consider the case in its relation to the disputed intent as to the officers of the bank.

In the orderly consideration of the subject, your first inquiry would be, who are the officers of the bank referred to by this act of congress? By the rule of association of words in the statute, first clearly pointed out by Mr. Hooper, there cannot be much doubt that congress conceived that a teller is one of the officers of the bank; and this is, undoubtedly the general understanding outside of banks, as shown by the definition of the word by lexicographers, laymen, and lawyers, and by the books on banking found in our law libraries. We think that the decisions of the supreme court of the United States also indicates that the word has been so understood by that tribunal. Yet congress was not organizing a bank by this statute, nor was it declaring who should or should not be the officers of the bank authorized by this banking act. On the contrary, by another section, the power is given to the board of directors to appoint 'other officers,' after having named the president, vice-president, and cashier as three of them that are fixed in the...