United States v. Oppenheim

Decision Date30 November 1915
Citation228 F. 220
PartiesUNITED STATES v. OPPENHEIM et al.
CourtU.S. District Court — Northern District of New York

Costello Burden, Cooney & Walters, of Syracuse, N.Y., for defendants Oppenheim and Rogers.

Charles N. Bulger, of Oswego, N.Y., for defendant Murphy.

Frank J. Cregg, Asst. U.S. Atty., of Syracuse, N.Y., and Wrisley Brown, Sp. Asst. Atty. Gen., of Washington, D.C.

RAY District Judge.

In this case, after a prolonged trial of seven weeks, with long sessions, including one or two Saturdays, and two whole days devoted to summing up by counsel, and after a lengthy charge occupying about five hours, including the consideration of numerous requests, the jury informed the court the second time that it desired further instructions. Thereupon the marshal was directed to bring the jury into court, whereupon the following occurred:

'Well gentlemen, is there anything the court can do? Any further charge or instructions?
'The Foreman: We have looked the evidence over, and worked hard over it, and seem to be divided, and it does not look as if we could agree.
'The Court: Well, on the questions of law, divided on the questions of law, legal questions?

'The Foreman: On questions of evidence.

'The Court: Anything I could call your attention to, gentlemen, in regard to the evidence? Is it in regard to the weight of the evidence, or what the evidence is?

'The Foreman: We would like to know the time when-- the evidence as to when Howard J. Rogers (one of the defendants) first knew that there had been money appropriated from the bank; and also Baron Oppenheim (another defendant).'

The indictment in count 1 charged a conspiracy between Wm. T. Brice, a clerk, and sometimes acting teller, in the First National Bank of Amsterdam, and the defendants on trial, Oppenheim, Rogers, and Murphy, to abstract and also to misapply the funds and credits of said bank for the benefit of all; Brice to do the actual abstracting and misapplication, and the others to aid and abet him in so doing, all sharing in the funds and credits so illegally obtained. It is not disputed that the bank was short some $180,000, or that something like $69,000 of this shortage was obtained from the bank mainly by means of checks drawn on the bank by Murphy, and by Murphy as attorney, and by 'Brice-Riley Realty Company, Murphy, Vice President,' and by Oppenheim and by Rogers on many occasions, and paid from the funds and credits of said bank without its knowledge, or that of its board of directors, through the artifices and manipulations and concealments and false entries of Brice in the bank. Neither of these persons had any account in the bank, except that Brice had opened a false account for Rogers in 'the loose leaf' ledger to aid in the abstraction, etc.

The other counts in the indictment, some 500 or 600 of them, charged that Brice either abstracted or misapplied the funds of the bank, and that Oppenheim, Rogers, and Murphy aided and abetted him in so doing. On some occasions money was taken out by Brice directly and passed over to some one of the other defendants. Brice testified as a witness for the government, and testified that at a time early in 1911 he in substance informed the other defendants that the money must come from the bank and was coming from the bank. It was, of course, necessary to corroborate Brice, and admissions and statements of Murphy and Rogers were used, as were the letters of Rogers, Oppenheim, and Murphy, in addition to the checks themselves. A visit of Oppenheim to Amsterdam to obtain money from Brice, and during which visit he obtained money from Brice, was proved, as was a visit made by Rogers to that place, and what occurred; also many visits by Murphy. Scores of letters written by Rogers and Murphy were in evidence, and one at least written by Oppenheim. The story of the visit by Oppenheim to Brice at Amsterdam as described by Brice differed in some respects from that told by Oppenheim, but both agreed that the visit was to obtain money through Brice; that Oppenheim went to the bank, but that no business was transacted there or discussed there; that they went to the engine house of the fire department of the city and there conversed; that an appointment was made to meet at a hotel, and that later they did meet there, and that then Brice got the money, he says, from the bank without its knowledge, and took it to the hotel and delivered it to Oppenheim, who gave a receipt. Brice claimed this money came from the bank improperly, and that Oppenheim then knew it. Oppenheim claimed it was a mere loan from Brice, a man of wealth, he supposed.

It is unnecessary to go into or give the details of the transaction. The defendants all claimed that the money, aggregating some $69,000, came as loans from Brice and from his personal funds, and that they had no knowledge of the fact that Brice was improperly and illegally taking the money from the bank. The government contended that the defendants knew it was coming from the bank illegally, and that the defendants aided and abetted, incited, and at times coerced Brice to take the money through fear of disclosure by them and promises of speedy profits and returns from promotion enterprises in which the defendants were concerned and engaged and a share of which was promised Brice. To answer the question propounded by the jury as to what the evidence was as to when Rogers and Oppenheim first knew that money had been or was being taken from the First National Bank of Amsterdam, it was essential to call attention to what proof is necessary to make out knowledge, and also to the evidence bearing on that question of knowledge. The checks were drawn and the money taken, almost entirely, in comparatively small amounts during a period of nearly three years. The court, in view of the letters and documents, could not say to the jury that Rogers first knew at one time or at another time, and the same was true as to Oppenheim. It was for the jury to determine, on all the pertinent evidence, first did they or either of them know Brice was improperly taking this money from the bank; second, did they aid and abet him, incite and encourage and procure him to do so, and if they or any one of them did know, when did the defendant having knowledge at any time first become possessed of that knowledge.

The court proceeded, therefore, to indicate the modes of proof by which knowledge may be shown, and then went very briefly over the claims of the government as to what had been shown, and by what evidence as to the time when Rogers and Oppenheim obtained their knowledge, if any, that the money was coming from the bank. The jury was repeatedly told that the matters stated were the contentions of the government, and that it was for the jury to say when the respective defendants first knew the money was being abstracted or misapplied. The jury came in for instructions on two occasions, and had been distinctly told that, inasmuch as Brice was alleged to be a conspirator, one or more of the defendants on trial might be found guilty on the conspiracy count and the others acquitted, and that on the other counts one or all the defendants on trial might be found guilty, or that some one or all might be found guilty on some of the counts and acquitted on the others, depending on when such defendants respectively had knowledge that Brice was taking the money from the bank or misapplying its credits illegally.

In connection with directing the attention of the jury to the claims of the government and the letters referred to the following took place: 'Mr. Costello: I also except to what you said in reference to the letters written by Mr. Rogers and each of them.

'The Court: Yes.

'Mr. Costello: I also ask you to state at this time--

'The Court: No; this is no time for requests.

'Mr. Costello, continuing: In connection with what you have already stated, that the defendants' evidence should be taken into consideration.

'The Court: I have told the jury many times, of course, to take into consideration all the evidence in the case, the evidence given by the defendants, and I tell them right here, in connection with what I have said, that they have heard the explanation given by Rogers, and the explanations, of course, given by Murphy, and the explanations given by Oppenheim. The question is, of course, whether they explain.'

Then, after referring to the contentions, the court said:

'It is for you to say, gentlemen. Take the letters as a whole, as I told you before, and the surrounding circumstances and conditions.'

Then, after referring to another contention, the court said:

'I have tried to call your attention to that, gentlemen, very pointedly, to what the government contends. It is a question of fact for you as intelligent men.'

Then later again:

'Mr. Costello: I would like to ask your honor to charge the jury that the answer to their question of when Rogers or Oppenheim knew is a question of fact for them, to be determined from all the evidence.

'The Court: I have stated that very many times.'

Then later the court again said:

'Of course, gentlemen, you understand that the questions of fact are for your decision, and the questions of law for the court. The weight of evidence is for you, subject to the rules of law which I have given you.'

Then later:

'These defendants are on trial for something that may involve their liberty, and of course that you are to have in mind in weighing their evidence. Brice is jointly indicted with them. The situation is as I have stated. Has that induced him to give false or colored testimony? Have all that in mind, the probabilities and the improbabilities, the reasonableness and the unreasonableness of the stories told, in view of the light of all the...

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2 cases
  • Philadelphia & R. Ry. Co. v. Marland
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 22, 1917
    ... 239 F. 1 PHILADELPHIA & R. RY. CO. v. MARLAND. No. 2112. United States Court of Appeals, Third Circuit. January 22, 1917 ... [239 F. 2] ... [Copyrighted ... giving instructions, U.S. v. Oppenheim (D.C.) 228 F ... 220, 228, as for instance, requiring that all instructions ... shall be in ... ...
  • State v. Kerns
    • United States
    • North Dakota Supreme Court
    • April 18, 1924
    ... ... really not guilty." Sparf v. United States, 156 ... U.S. 51, 39 L.Ed. 343 ...          "But ... mere advice to tell the ... St. Rep ... 1059, 100 P. 681, 19 Ann. Cas. 631; United States v ... Oppenheim (D. C.) 228 F. 220; 16 C. J. p. 735. Other ... courts have held that the issue is to be ... ...

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