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February 22, 1897. The 25th, 26th, and 27th upon a check for $169.84 drawn to the order of "Cash Memo.," and dated March 9, 1897. The 28th, 29th, and 30th upon a check for $68 drawn to the order of “J. D. Church, General Agent," and dated March 4, 1897. The 31st, 32d, and 33d, upon a check for $680.15 drawn to the order of "W. H. Penland, Cashier," and dated March 24, 1897. The 34th, 35th, and 36th, upon check for $100 drawn to the order of "Mrs. M. A. E. W.,” and dated April 7, 1897. The 37th, 38th, and 39th, upon a check for $176.19; and my memorandum does not state in whose favor it was drawn, but the fact that it was in full or part payment of Veorhoff's draft, and dated May 7, 1897. The 40th, 41st, and 42d, upon a check for $111, Mrs. Anna R. Cartmell, dated May 27, 1894. The 43d, 44th, and 45th, upon a check for $135.21 drawn to the order of Nordyke, Norman & Co., and dated May 21, 1897. The 46th, 47th, and 48th counts are out of the indictment. No evidence was offered in support of these counts. The 49th, 50th, and 51st are based upon a check for $74.39 payable to the order of Powell & Snyder, and dated June 10, 1897. The 52d, 53d and 54th, upon a similar check for $74.38, payable to the order of Powell & Snyder, and dated June 19, 1897. The 55th, 56th, and 57th, upon a check for $48.25, payable to the order of the Fulton Bag Company, and dated June 21, 1897. The 58th, 59th, and 60th, upon a check for $102.43, payable to the order of Nordyke, Norman & Co., and dated June 21, 1897. The 61st, 62d, and 63d, upon a check for $94.45-my memorandum does not show to whom it was made payable, but I think to the New York Life Insurance Company-upon a draft dated July 13, 1897. The 64th, 65th, and 66th, upon a check for $349.80, dated July 21, 1897, and drawn for the purpose of paying the draft of Veorhoff & Co.

The first charge in the indictment, gentlemen, is that of embezzlement. This word, as used in the statute, has a technical meaning, and is a species of larceny. I will endeavor to explain this technical meaning to you, in order that you may be the better enabled, when you go to your room, to determine whether the proof before you brings the acts of the defendant charged in the first count of the indictment, and in every third count thereafter, or any of them, within the scope of that definition; and, for this purpose, I cannot do better than to quote with approval the words of another federal judge (the late Mr. Justice Howell E. Jackson) in charging a jury in a similar case. United States v. Harper (C. C.) 33 Fed. 474 476. I now quote:

"It [the crime of embezzlement] is especially applicable to the unlawful conversion of property by clerks, agents, and servants acting in fiduciary or trust capacities, and, under the statute above quoted, by a president, director, cashier, teller, clerk, or agent of any national banking association. It involves two general ingredients or elements: First, a breach of trust or duty in respect to the moneys, properties, and effects in the party's possession, belonging to another; and, secondly, the wrongful appropriation thereof to his own use. In order to constitute this crime, it is necessary that the property, money, or effects embezzled should have previously come lawfully into the hands, possession, or custody of the party charged with such offense, and that while so in his possession and custody, held for the use and benefit of the real owner, he wrongfully converted the same to his own use. In other words, there must be an actual and lawful possession or custody of the property of another, by virtue of some trust, duty, agency, or employment, committed to the party

charged, and, while so lawfully in the possession and custody of such property, the person must unlawfully and wrongfully convert the same to his own use, in order to commit the crime of embezzlement. The difference between the crime of embezzlement and that of larceny may serve to better illustrate what is required to constitute the former offense. In larceny there is the ingredient of an unlawful taking from the possession of the owner with the intent to deprive him of his property, and to wrongfully appropriate the same to the use of the party so taking. The custody or actual possession in larceny is acquired by the party unlawfully, in the act of feloniously taking the owner's property without his consent. But in embezzlement there is no wrongful or unlawful acquisition of the custody or possession of the property embezzled. On the contrary, the party embezzling must be lawfully in possession, by virtue of some employment, trust, or agency, under and with the consent of the owner, and while so in possession, holding the property in trust, or for the benefit of the owner, he wrongfully converts the same to his own use. A few practical illustrations may serve better to explain the offense of embezzlement. If your clerk-a clerk in your store within the line of his employment, sells your goods to a customer, and receives the price therefor, and, while holding the money thus received, even on his way to deposit it in the cash drawer or to deliver it to his employer, he converts it to his own use, or any portion thereof, this would constitute embezzlement. Now, if, after having received the money from a customer, the clerk should deliver it over to his employer, or cashier authorized to receive it for him, and should thereafter secretly take the same identical money from the employer's pocket or the cashier's drawer, with the intent to appropriate it to his own use, that would be larceny. You send your hired man to the city or depot with a load of corn. The property is yours, but it is lawfully for the time being in the possession of the hired man as your agent, to hold and deliver for you, for your use and benefit, according to your directions. Instead of executing his duty, he converts or appropriates all or any portion of the corn to his own use. This would be embezzlement. If he should surreptitiously take from your crib corn, with the possession of which he had not been previously intrusted, his offense would be larceny. If the general bookkeeper of a bank, having no general or special custody or possession of the funds of the bank, secretly takes from the safe or drawer of the receiving or paying teller moneys of the bank, with the intent to appropriate the same to his own use, he commits an act of larceny. If, however, the teller-receiving or paying teller-in whose custody the moneys of the bank are placed by virtue of his employment or duty takes the same amount from his drawer, and converts the same to his own use, he would commit the crime of embezzlement. These instances will serve to illustrate the principle which you should keep in mind and apply in considering the charge of embezzlement against the defendant. It must appear from the evidence that the moneys, funds, credits, or assets of the association, alleged to have been embezzled, were, previously to their wrongful appropriation, lawfully in the possession and custody of the defendant, and that they were, while so held by him, wrongfully converted to his own use. It is not, however, necessary that he should have been in the exclusive custody or possession at the time of the conversion to his own use, in order to constitute this offense. If the evidence establishes that the business and assets of the bank were actually or practically intrusted to the care and management of the defendant, so that, by virtue of his position as vice president, director, or agent, he had not merely access to, or a constructive holding of, but such actual custody of the funds, moneys, and credits of the association as enabled him to have and exercise control over the same, that would place him in the lawful possession of said funds or other property; and if, while so lawfully in possession of such assets, funds, and credits, or other property, committed to his care and custody for the benefit of the bank, he wrongfully converts any part or portion of said assets to his own use, with intent to injure or defraud the association, he would thereby commit the offense of embezzlement. If his position and employment gave the defendant a superior or a joint and concurrent possession with subordinate employés or agents of the bank, that would be sufficient to place him in such lawful possession as would enable him to commit the crime of embezzlement, in relation to assets of the bank so committed to his keeping. If, for example, his position and employment in

the bank gave the defendant a joint or concurrent possession and custody of the bank's moneys, funds, and credits with the teller, cashier, or other officer, this would constitute lawful possession on his part for the benefit of the association, equal with that of such teller, cashier, or agent; and if, while so lawfully in possession, either alone or jointly with other officers or agents of the bank, he wrongfully converts said funds or assets to his own use, with intent to injure or defraud the association, he would thereby commit the offense of embezzlement."

So far I have quoted.

You are not required to find that the exact sum or sums stated in these counts in the indictment was or were embezzled. If, under the circumstances mentioned, any portion of the funds described in the counts was embezzled, no matter how small the amount may be, it will be sufficient to sustain a verdict, and you are not required to specify in your verdict the amount embezzled.

We next come to the charge of abstraction. This has no such technical and limited meaning as has the word "embezzlement." To "abstract" means to take from or to withdraw from, so that to abstract the moneys, funds, or credits of the bank, or a portion of them, is to take or withdraw from the possession and control of the bank such moneys, funds, or credits. To constitute the offense, within the meaning of the act, it is necessary that the moneys, funds, or credits should be abstracted from the bank without its knowledge and consent, and with intent to injure or defraud it, or some company or person other than the bank. Abstraction, under section 5209, Rev. St. [U. S. Comp. St. 1901, p. 3497], is the act of one who, being an officer of a national banking association, wrongfully takes or withdraws from it any of its moneys, funds, or credits, with intent to injure or defraud it, or some other person or company, and, without its knowledge and consent, or that of its board of directors, converts them to the use of himself, or of some person or company other than the bank. No previous lawful possession is necessary to constitute the crime, nor does it matter in what manner it is accomplished. It may be done by one act, or by a succession of acts. It may be done under color of loans, discounts, checks, and the like. The means used do not change the nature of the act. If the necessary or natural result is to wrongfully withdraw funds or moneys of the bank, without its actual knowledge and consent, by its board of directors, and to convert the same to the use and benefit of the abstractor, or to that of some person or company other than the bank, the means resorted to are of no consequence, and in no way affect its criminal nature.

"Willful misapplication," as described in the statute, means a misapplication, willfully and unlawfully made by one of the officers enumerated therein, of the moneys, funds, or credits of the bank, and made with intent to injure the bank, or some other company or person; and it has been held that there must be a conversion of the funds misapplied, to the use and benefit of the wrongdoer, or to the use of some one other than the bank. It is not necessary that the officer so charged should have been previously in the possession or custody of the money, funds, or credits of the bank by virtue of any trust, duty, or employment.

You will thus see that an officer of a bank cannot be guilty of embezzlement unless the moneys, funds, or credits of the bank have first

been placed lawfully in his custody and control, to be held and used in trust for the bank; but he may be guilty of abstracting or misapplying them without having been lawfully intrusted with their custody. Similarly, to constitute the crime of embezzlement, the thing embezzled must be converted to the use of the criminal, while the moneys, funds, or credits of a bank may be criminally abstracted or willfully misapplied, whether used by the criminal for his own benefit, or for that of any person other than the bank.

It thus appears that whenever the crime of embezzlement, under section 5209, is committed, it embraces as well the offenses of abstraction and willful misapplication, but the converse of the proposition is not necessarily true. That is, as to any transaction which is made the subject of an indictment under this section, if the defendant is proved guilty of embezzlement, he is also necessarily guilty of abstraction and willful misapplication, because every essential feature of the latter crimes is included in the essentials to constitute embezzlement; but he may be found guilty of abstraction or of willful misapplication, or both, without being necessarily guilty of embezzlement as to the transaction which is the subject of the charge. You will notice that, in each of these offenses, intent to injure or defraud the bank, or some other person or company, is an essential element; and, unless the jury are satisfied beyond a reasonable doubt that this intent to injure existed at the time of the commission of one or more of the acts charged in the indictment, they cannot convict the defendant.

It becomes important, then, to ascertain what is meant, in law, by this intent to injure or defraud, and what is necessary to establish it. Ordinarily the intent with which a man does a criminal act is not proclaimed by him. Ordinarily there is no direct evidence by which a jury may be satisfied from the declarations of the criminal himself as to what he intended when he did a certain act. The statute does not mean that it must be made to appear to the jury by proof which convinces their minds beyond a reasonable doubt that the defendant had malice or ill will towards the bank, or that he intended to wreck it. The intent to injure or defraud contemplated by the statute is not inconsistent with a deep and abiding interest on the part of the accused in the prosperity of the bank, and a sincere desire for its ultimate success and welfare. I say intent to defraud is not inconsistent with that state of affairs. If a man knows that the act he is about to commit will naturally or necessarily have the effect of injuring or defrauding another, and he voluntarily and intentionally does the act, he is chargeable, in law, with the intent to injure or defraud. It is not necessary that his object or purpose was primarily to injure or defraud. It may have been to benefit himself. These terms, as used in the statute, mean nothing more than that general intent to injure or defraud which always arises, in contemplation of law, when one willfully or intentionally does that which is illegal or fraudulent, and which, in its necessary and natural consequence, must injure another. The law presumes that every man intends the natural and ordinary consequences of his acts. Wrongful acts knowingly or intentionally committed cannot be justified on the ground of innocent in

tent. The color of the act, done with knowledge of its natural or necessary results, determines the complexion of the intent.

This question of intent, like all other questions of fact, is solely for the jury to determine, but it must be determined by you in this case in accordance with these legal principles; and I therefore instruct you that if, from all the evidence in the case, you should believe beyond a reasonable doubt that any one or more of the acts charged against the defendant was or were committed by him at the time and in the manner charged in the indictment, and that he committed such acts voluntarily and intentionally, and with full knowledge that the natural and necessary result thereof would be to injure or defraud the bank or some other company or person, then you must necessarily infer, as to such act or acts, that they were committed with the intent to injure or defraud mentioned in the statute; and unless, from the presumption of innocence existing in favor of the defendant raised by the law, or from evidence introduced in his behalf, there exists in your minds a reasonable doubt of such intent, you should find him guilty as to the count or counts embodying such act or acts.

Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. But this burden is successfully borne whenever, from all the evidence introduced in the case, and taking into consideration the legal presumption which the law indulges in favor of the innocence of the accused, you have no reasonable doubt of his guilt. If the whole evidence, when carefully examined, weighed, and compared, produces in your minds a settled conviction or belief of the defendant's guilt-such a conviction as you would be willing to act upon in the most important matters relating to your own affairs-you are free from any reasonable doubt, and should find a verdict in accordance with that conviction or belief.

I desire to direct your attention for a moment to the distinction between the presumption of innocence raised by the law in favor of the defendant and reasonable doubt. In the words of the Supreme Court of the United States (Coffin v. United States, 156 U. S. 459, 460, 15 Sup. Ct. 394, 39 L. Ed. 481):

"The presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. This presumption on the one hand, supplemented by any other evidence he may adduce, and the evidence against him, on the other hand, constitute the elements from which the legal conclusion of guilt or innocence is to be drawn."

Thus far I quote.

Reasonable doubt, you will observe, is the result of the proof, and not the proof itself, and must arise, if, in fact, it exists in your

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