United States v. Randall, 9286

• Decision Date: 03 December 1947
• Docket Number: No. 9286,9298.,9286
• Citation: 164 F.2d 284
• Parties: UNITED STATES v. RANDALL. SAME v. HACKBUSCH.
• Court: U.S. Court of Appeals — Seventh Circuit

164 F.2d 284 (1947)

UNITED STATES v. RANDALL.

SAME v. HACKBUSCH.

Nos. 9286, 9298.

Circuit Court of Appeals, Seventh Circuit.

November 3, 1947.

Rehearing Denied December 3, 1947.

Charles J. Eichel, of Evansville, Ind., and Marvin B. Simpson and Lem Billingsley, both of Fort Worth, Tex., for appellant Randall.

Edwin C. Henning, Joseph B. Minor, and Theodore Lockyear, all of Evansville, Ind., for appellant Hackbusch.

B. Howard Caughran, U. S. Atty., and Maurice W. Graston, Asst. U. S. Atty., both of Indianapolis, Ind., and Elba L. Branigin, Jr., Asst. U. S. Atty., of Franklin, Ind., for appellee.

Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

The defendants were charged separately by grand jury indictment, based upon 18 U.S.C.A. § 88, with the crime of conspiracy, in violation of Section 592 of the Banking Act of 1935, 12 U.S.C.A. § 592, and were separately tried. Both pleaded not guilty. In each case, at the close of the Government's evidence, and at the close of all the evidence, the defendant therein involved moved for a directed verdict in his favor, both of which motions were denied in each case. The juries returned verdicts of guilty, judgments were rendered accordingly, and from those judgments these appeals are prosecuted.

The facts which constitute the basis of the indictment against Randall relate to the National City Bank of Evansville, Indiana (hereinafter referred to as the bank), its cashier and vice-president, Sterling J. Perry, and the defendant, Harry R. Randall. Perry had been an employee of the bank for thirty-four years. He began in 1912 as a messenger boy, worked in the different bookkeeping departments, became receiving and paying teller, assistant cashier, cashier, and after the annual meeting in January, 1946, he became vice-president. Until May 8, 1946, he bore a most excellent reputation with the officers of the bank and with the citizens of Evansville. On May 27, 1946, he drove his car to Indianapolis, surrendered to the federal authorities and admitted a shortage in his accounts at the bank of $143,278.58. Subsequently he pleaded guilty to the charge of embezzlement, and since that time has been confined in the federal prison at Terre Haute, Indiana.

The charge against the defendant Randall is that on or about the first day of January, 1940, and thereafter until May 27, 1946, he conspired with persons to the grand jurors unknown and with Sterling J. Perry, an officer of the bank, for the said Perry to embezzle and wilfully misapply monies and credits of that bank and to make and cause to be made false entries in the books, reports, and statements of that bank, with intent on the part of Randall and Perry and the said other unknown persons to injure and defraud said bank, and with the further purpose on the part of Randall and Perry to deceive the officers of that bank, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and all agents and examiners appointed to examine the affairs of that bank.

Randall's defense was that he did not know that the money with which his numerous no-fund checks over the years were being paid by Perry came out of the bank's funds, while Hackbusch's counsel contends that Hackbusch, who did not testify, really thought that all the money to cover his checks was being supplied by Perry out of his own funds, which Hackbusch considered all along as a debt he owed Perry personally, and both defendants make the point that they did not know of the existence of the special accounts opened by Perry and through which he operated.

So well is the law established that we need not cite any authorities that a reviewing court must not undertake to determine the weight of the evidence or the credibility of the witnesses. An appellate court in examining the record, must take that view of the evidence most favorable to the plaintiff, and must give to the plaintiff the benefit of all inferences which reasonably may be drawn from the evidence. In such appeals the question presented is not whether the evidence is sufficient to prove defendant's guilt beyond a reasonable doubt, but rather, whether the verdict is supported by any substantial evidence, direct or circumstantial. Having these principles in mind, we proceed to relate the more important facts established by the verdicts of the juries and the law applicable thereto.

There is no dispute concerning the fact that Perry embezzled and misapplied the funds of the bank, nor is there any dispute that at least $16,335.98 of the bank's funds was misapplied by Perry to Randall's nofund checks. Perry testified that $50,000 or $60,000 of his shortage at the bank went to Randall and that at least $27,582.91 of the funds embezzled and misapplied by him was used to take care of Hackbusch's nofund checks. Perry, however, testified that all of the checks handled by him out of the bank's funds for Hackbusch amounted to between $40,000 and $50,000.

Randall was a native of Canton, Pennsylvania. He had been engaged in the business of oil explorations, drilling wells and producing oil for twenty years. He moved to Evansville, Indiana, and has lived there continuously since the latter part of 1939. On June 16, 1939, he opened a checking account with the bank. This account was closed on July 2, 1941. The record discloses that Perry's salary ran from $300 to $400 per month; that he did not own his home; that his net worth in actual money in 1940, or at any time since then, was not more than $5,000; that Perry and Randall had in 1940 discussed their relative financial conditions with each other; and that on December 1, 1940, Randall wrote Perry a letter explaining his (Randall's) desperate financial condition. In this letter Randall said: "I am without any money at all and at the moment do not know where to turn — * * *. * * * I know that I can or could still get this through if I had the money to stay with it. But know you have gone beyond what you should already."

On March 20, 1940, the bank, through Perry, loaned Randall $750, for which the latter executed his note to the bank. It was not paid when due, and the bank records disclose that later it was charged off as a loss. The record does not disclose just when Perry began advancing money to Randall, but both agree that whenever it was, the advances were in small amounts. Perry testified that these early advances were made by him personally, but when Randall's demands got larger (about the middle of 1942), he took care of Randall's no-fund checks by paying them with bank funds; that he handled these no-fund checks through the "cash item drawer" until September 25, 1943, when he opened two special accounts, under his own supervision, to take care of them; that all deposits in these special accounts were on deposit tickets showing "cash," the money coming out of the bank's funds; that during 1944, through this account, Perry cashed 197 of Randall's checks aggregating $8,953.92, 108 checks aggregating $3,761.28 during 1945, and 76 checks aggregating $3,620.87 during the period from January, 1946, to May 27, 1946. All of these checks were signed by Randall individually and when he had no account to which they could be properly charged. Perry also testified that after cashing these no-fund checks, he, from time to time, delivered them to Randall.

Randall testified that he had no knowledge or information of the existence of those accounts, that he never wrote any checks on those accounts, and that he never received a statement from the bank or from anyone as to the condition of any of those accounts. Both Randall and Perry testified that Perry told Randall to write checks on the bank and that he, Perry, would furnish the money with which to pay them.

Hackbusch and Randall were separately charged with separate conspiracies in conjunction with Perry, and other unknown parties, for Perry to embezzle the bank's money. The items of embezzlement which were the subject of the separate alleged conspiracies were not the same, and were not related in any respect, except that Perry, prior to the trial of these cases, pleaded guilty to the embezzlement of the bank's money, which included the money he had paid to both of these defendants, or for their benefit. The indictments are identical except as to names and overt acts. Hackbusch pleaded not guilty and did not testify.

About February 26, 1942, Hackbusch opened a checking account with the bank. Checks against this account were to be signed "Bristol Hackbusch, Trustee," This account ran from February 26, 1942 until after May 27, 1946, when Perry made a disclosure of his shortage.

Hackbusch became acquainted with Perry about the middle of 1942 and from that time practically all of his transactions with the bank were conducted by and through Perry. Sometime after Hackbusch had met Perry, Hackbusch requested Perry to help him out financially, and for a while Perry did make him small personal loans, but Hackbusch's oil...