United States v. Potter

• Decision Date: 29 October 1892
• Docket Number: 1,212,1,211,1,214.,1,213
• Citation: 56 F. 83
• Parties: UNITED STATES v. POTTER. SAME v. DANA. SAME v. FRENCH.
• Court: U.S. District Court — District of Massachusetts

56 F. 83

UNITED STATES v. POTTER.

SAME v. DANA.

SAME v. FRENCH.

Nos. 1,211, 1,212, 1,213, 1,214.

United States Circuit Court, D. Massachusetts.

October 29, 1892

Indictment No. 1,211 was against Asa P. Potter, Eighty-eight counts charged him with certifying and causing to be certified 11 different checks, and were founded on the following statutes:

Act of July 12, 1882, c. 290, § 13: 'That any officer, clerk, or agent of any national banking association who shall willfully violate the provision of an act entitled 'An act in reference to certifying check by national banks,' approved March third, eighteen hundred and sixty-nine, being section fifty-two hundred and eight of the Revised Statutes of the United States, or who shall resort to any device, or receive any fictitious obligation, direct or collateral, in order to evade the provisions thereof, or who shall certify checks before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association, shall be deemed guilty of a misdemeanor,' etc.

Rev St. U.S. § 5208, referred to above, is: 'It shall be unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn upon the association, unless the person or company drawing the check has on deposit with the association, at the time such check is certified, an amount of money equal to the amount specified in such check.'

Forty of the counts charged that Potter did as president 'unlawfully, knowingly, and willfully certify a certain check, which check was then and there drawn upon said association [the Maverick National Bank] for the amount of twenty-four hundred and fifty dollars, by certain persons, to wit. Irving A. Evans, Austin B. Tobey, and William Bliss then and there doing business as copartners under the firm name and style of Irving A. Evans and Company, and which said check was then and there of the tenor following, that is to say. [A copy of the check as certified was then set out] That the said persons as copartners under the firm name and style as aforesaid, by whom said check was then and there drawn as aforesaid, did not then and there, to wit, at the time said check was so certified by said Potter as aforesaid, have on deposit with said association as amount of money then and there equal to the amount then and there specified in said check, to wit, the amount of twenty-four hundred and fifty dollars in money, as he, the said Potter, then and there well knew,' etc.

Forty-four of the counts against Potter charged that one Joseph W. Work the cashier of the Maverick National Bank, did unlawfully knowingly, and willfully certify a certain check drawn by Evans & Co., (setting it out,) the said Evans & Co. not having on deposit with the bank an amount then and there equal to the amount then and there specified in said check, as he, the said Work, then and there well knew; and that 'Asa P. Potter, the president of said association, before the said Work so unlawfully, knowingly, and willfully certified said check, * * * did unlawfully, knowingly, and willfully counsel, aid, abet, procure, and command the said Work, (he, the said Work, being then and there cashier of said association,) to unlawfully, knowingly, and willfully certify said check,' etc.

It will be seen that a portion of the counts were under section 5208, and charged the willful certification of checks when the parties drawing the check did not have on deposit 'an amount of money then and there equal to the amount of money then and there specified in said check,' and others charged, under section 13, the willful certification of checks before the amount thereof had been entered to the credit of the party drawing the check on the books of the bank; and that the above two classes were each subdivided, a part charging Potter as principal, and a part as counseling and aiding J. W. Work, the cashier. Some of the counts contained a further statement that the checks, after being certified, were authenticated by Jordan, the paying teller, by placing his initials, 'N. J. C.,' before the words 'Paying Teller' on the back of the note, and following the certification. Nothing was said about delivering the check after certifying.

A special demurrer was filed, in which and under which the following points were raised: (1) That the counts between and including 1 to 4 and 65 to 80 did not set out that the check was delivered after being certified. (2) That the counts charging aiding and abetting state no cause of action. (3) That the authentication by the paying teller was a part of the certification; that the indictment sets out simply that there was no money on deposit when Potter certified the check, and does not set out that there was no money on deposit when the authentication was made, which would have been sufficient. (4) That the words 'amount of money equal to' are indefinite, and under them one might be convicted who had on deposit a greater sum than the amount of the check. (5) That certifying checks before sufficient money is on deposit is an offense, and certifying checks before the amount is entered upon the books of the bank is another, and that some counts set out circumstances covering both offenses, and were bad for duplicity.

Indictment 1,212 was brought under Rev. St. § 5209, which is as follows: Section 5209: 'Every president, director, cashier, teller, clerk, or agent of any (national banking) association who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association, indicates the omission of some, or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injury 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, and shall be imprisoned not less than five years nor more than ten.'

This indictment was in 30 counts. In 18 counts it was charged that said Potter, as president, 'in a certain book then and there belonging to, and then and there in use by, said association in transacting its said banking business, and then and there called and known as the 'Note Teller's Cash Book,' which said book contains entries concerning said business covering a period of time beginning with the 30th day of December in the year of our Lord one thousand eight hundred and eight-nine, and ending with the 24th day of June in the year of our Lord one thousand eight hundred and ninety, and upon the right-hand page of a certain folio of said book, which said page, at the top thereof, was then and there on said fourth day of March marked and designated in the words and figures following,--that is to say:

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--did unlawfully, knowingly, and willfully make on said page, and to the right of, and on the line next below, the word 'Legals,' on said page, a certain false entry, which said false entry was then and there on said fourth day of March of the tenor following,--that is to say, '312,100;' which said false entry so as aforesaid made in said book then and there on said fourth day of March purported to show, and did in substance and effect indicate and declare, and was then and there on said fourth day of March intended by said Potter to falsely indicate and declare, that there was then and there at the same time false entry was so made as aforesaid in the possession of said association, in the department of the note teller thereof, as the property of said association, the sum of three hundred and twelve thousand one hundred dollars in legal tender notes of the United States, and the jurors aforesaid, upon their oath aforesaid, do say that the said false entry so made as aforesaid was then, at the time said false entry was so as aforesaid made, false in this: that there was not then and there, at the time said false entry was so made as aforesaid, in the possession of said association, in the department of said note teller thereof, as the property of said association, the said sum of three hundred and twelve thousand one hundred dollars in legal tender notes as aforesaid, all of which he, the said Potter, then and there well knew; and said false entry was at the time it was so made as aforesaid false in this: that the sum of all the legal tender notes of the United States in the possession of said association in the department of the said note teller as the property of said association did not, at the time said false entry was so made as aforesaid, exceed the sum of twenty-six thousand dollars, as he, the said Potter, at the time said false entry was so made as aforesaid, well knew; and that the said false entry so made as aforesaid was then and there made as aforesaid with the intent then and there on the part of him, said Potter, at the time he so made said false entry, to deceive any agent who might be thereafter appointed by the comptroller of the currency of the said United States to examine the affairs of said association, against the peace,' etc.

Twelve counts of the same indictment charged alternatively that said Potter, as such president and director, did 'unlawfully knowingly, and willfully make a certain false entry in a certain report of the said association, which said report was then and there on said sixth day of March a report of the condition of said association at the close of business on the twenty-eighth day of February in the year of our Lord 1890, made to the comptroller of the currency of the said United...