Wilson v. United States
| Decision Date | 07 April 1947 |
| Docket Number | No. 11584.,11584. |
| Parties | WILSON v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
G. Ernest Jones and Ira E. Tidwell, both of Birmingham, Ala., for appellant.
John D. Hill, U. S. Atty., Gorman R. Jones, Jr., and Osce M. Bentley, Asst. U. S. Attys., all of Birmingham, Ala., for appellee.
Before SIBLEY, HOLMES, and WALLER, Circuit Judges.
Upon a trial by jury, appellant was found guilty of embezzlement of money belonging to the United States, in violation of Section 100, Title 18, of the United States Code Annotated. Two points are raised on this appeal: first, the sufficiency of the evidence to support the verdict; second, the failure of the indictment to allege that the money embezzled was the property of the United States.
The indictment was in four counts, and each dealt with the sale of a different bond, the proceeds of which were embezzled. The jury found the defendant guilty on all four counts. He testified in his own behalf and denied his guilt, but he admitted that he received, endorsed, and cashed the checks given by the four purchasers of the bonds described in the indictment, the sales of which were not reported by him.
The funds in question were paid to appellant while he was acting for the Rheem Manufacturing Company in relation to its activities as an issuing agent of the United States for the sale of War Savings Bonds, Series E. Wilson was the office manager of the Company with complete charge of its cash sales of said bonds. He was the sole custodian of the bond stock and of the proceeds of the sale of the bonds, when issued to the original purchasers thereof. He was authorized to requisition blank bonds, to issue and deliver them to purchasers, to receive the proceeds of sales thereof, and to account for the same to the United States through the Federal Reserve Bank of Atlanta.
As office manager and representative of the issuing agent, Wilson had pads from which the bonds were issued. They consisted of the original bonds and two copies, one white and one pink. The white and pink forms became carbon copies of the original bonds. The pink copies, which were usually signed as receipts by the purchasers, were retained by the issuing agent. The white copies were required to be returned to the Bank as records of bonds that had been sold.
Although the shortage in the bond account amounted to the cost of bonds of the face value of seventy-one hundred dollars, the bonds described in the respective counts of the indictment were as follows:
Count 1. Fifty Dollar Bond, No. L XXX-XXX-XXX
E, sold and delivered to
Herbert H. Henry, Jr., on May
31, 1945
Count 2. One Hundred Dollar Bond, No
C-102-954-538 E, sold and delivered
to John W. Thornton on
June 9, 1945
Count 3. One Hundred Dollar Bond, No
C-102-954-585 E, sold and delivered
to Mrs. Enzo M. Gandy
on June 8, 1945
Count 4. Five Hundred Dollar Bond, No.
D XX-XXX-XXX E, sold and delivered
to Mrs. Mardie B. Meacham
on May 31, 1945.
Wilson's secretary testified that the reports of sales of bonds were prepared by direction of Wilson himself. He furnished the white copies, or stubs, of the bonds from which she made the reports. The method of making the cash sales was devised by him. The method of handling the money was directed by him. The cash obtained from these bonds was turned over to him and was not commingled with other funds. The bonds described in counts one and four of the indictment were sold on May 31, 1945. He failed altogether to report these sales to the Federal Reserve Bank in his reports of June 8, 1945, June 20, 1945, June 28, 1945, July 5, 1945, and July 7, 1945. In addition, the white copies thereof had disappeared, though he had control of them. The bonds described in counts two and three were sold on June 9 and 8, respectively. He failed to include either of these sales in his four reports subsequently made in June and July as above stated. In these instances also the white copies had disappeared, though he had control of them.
The jury evidently believed the testimony of appellant's secretary that she did not steal the money or destroy the white stubs. It was a question for the jury whether to believe Wilson or the witnesses in the case whose testimony incriminated him. Issuing agents were required to make periodic statements of account to the Federal Reserve Bank. These reports contained the serial numbers of the bonds sold, the amount of unissued stock on hand, and other information; they were accompanied by white copies of the bonds listed as having been sold, together with a remittance to cover the cash amount due. From all of the evidence in the case, the jury was warranted in returning a verdict of guilty as charged on each count, any one of which is sufficient to support the judgment.
The most serious question on this appeal is whether the indictment is so defective in substance as to be unable to withstand an attack upon it after verdict. There was no demurrer to the indictment, no motion to quash it, and no motion in arrest of judgment; but there was a motion for acquittal at the conclusion of the evidence for the prosecution, which was directed to the insufficiency of the proof and not to defects in the indictment. In none of the counts of the indictment was there an express allegation that the funds embezzled were the property of the United States, though it was alleged that the defendant was authorized to sell and did sell the bonds, describing them by serial numbers, and that he received therefor the purchase price in a certain sum, which he embezzled.
There are two federal statutes that bear upon the issues before us; one is directed to trial courts,1 the other to appellate courts.2 We are concerned primarily with the latter, which requires the reviewing court to disregard any error of the trial court that, regardless of its tendency, caused no prejudice to the substantial rights of the accused. Both are remedial statutes and should be liberally construed, subject to the provision of the Sixth Amendment that the accused...
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