MAY v. UNITED STATES, 157 F. 1

GILBERT, Circuit Judge (after stating the facts as above). It is assigned as error that the court excluded evidence of certain remarks alleged to have been made by the witness Fleet in a conversation outside of the courtroom during the progress of the trial. It was the contention of the prosecution that Fleet, who was one of the principal witnesses for the government, was on September 9, 1906, a depositor in the bank. The contention of the defense was that Fleet was not then a depositor, for the reason that, on authority given by him to the plaintiff in error, the latter had drawn his money out and loaned it.

The witness was asked whether after the adjournment of the court on a certain day he had, in a discussion with others as to the probable ruling of the court on the question of the admission of papers, exclaimed, “damn it, my claim must be properly presented,” or “never has been properly presented.” It is argued that this evidence, if admitted, would have tended to show bias or prejudice upon the part of the witness.

It is the rule in criminal cases to allow wide latitude upon cross-examination in the quest of evidence of bias or prejudice, but this proffered testimony appears to us, as it appeared to the court below, entirely valueless as evidence of bias or prejudice. Assuming .that it was to Fleet’s interest to present a claim against the bank, and that he made the remark as. suggested in the interrogatory, how would the evidence of that fact have aided the jury in arriving at a verdict ?

What had the presentation of his claim or the manner of its presentation to do with the question of his bias or prejudice when testifying as a witness? It is assigned as error that the trial court excluded evidence of statements made by the plaintiff in error to W. C. Kipp at the time when he made the loan to Redhead & Kipp on July 21, 1896, to the effect that the bank was not loaning the money, but that it was money belonging to W. H. Fleet, left with the bank to be loaned. It is contended that the declarations of one accused of crime made at the time and as a part of

an act under investigation are-always admissible to qualify and explain the act and to show the intent thereof. It is true that the question of the intent of the plaintiff in error in doing the acts charged in the indictment was one of vital importance. If the specific intent charged did not exist, the plaintiff in error was not guilty. But what was the intent which was under investigation ? It was the intent which actuated the plaintiff in error at the time of making the statements to the Comptroller of September 9, 1903.

Any fact or circumstance which was properly of the res geste of that act was admissible in evidence. So, also, any statement which the plaintiff in error might have made in May, 1896, at the time of his conversation with Fleet in regard to' the use of his money, would have been admissible. But here the offer was of statements made by the plaintiff in error two months after the date of his conversation with Fleet and nine years before the-date when he committed the acts charged in the indictment.

The court below properly, we think, excluded such evidence on the ground that the declarations were self-sérving, and the proof proffered was of an independent and collateral matter, no part of the res gestae. If at or prior to the time of making these alleged statements the plaintiff in error had conceived in his mind the plan of loaning Fleet’s money without letting him know of it, it was a matter of course that he would make such declarations, for they might be of service to him in the future.

At most, the offered evidence would have tended to prove to the jury that the defense which the plaintiff in error relied upon on the trial was no new thought, but had existed in his mind as far back in point of time as July, 1896; but the jury had independent proof of what was in his mind at that time, for there were in evidence the note signed by Redhead & Kipp to Fleet for the money borrowed at that time, and the notes of the Triune Gold Mining Company also made to Fleet.

The proof of the declarations so offered in evidence would have added no force to the documentary proof which was in the possession of the jury. _ ' _ Error is assigned to the ruling of the court on -the question propounded to Wilson, the bank examiner, as follows: "I will now ask you, in a case like this, where the report Is in accordance with the books on their face and the books are false, if an account has been closed that should not be closed, then I will ask you how you wquld, if at all, ascertain the facts, under those circumstances?” It is argued against this question that it assumed the falsity of the books in the case under investigation.

But the district attorney expressly stated in connection therewith that no reference was made to the present case. We find no merit in the objection. The question went no further than to ask the witness how in a case where it was charged that a false return had been made the fact could be ascertained, if it were a fact that the books were false, when on their faces they accorded with a report to the Comptroller.

Error is assigned to the following instruction: “It follows, of course, that in considering the case upon those issues which have thus far been mentioned to you that if the defendant was not authorized by W. H. Fleet to loan out his money, and the defendant had no reasonable ground to think so, even if not authorized, that a conviction must follow; and, if he was, no conviction can be had. As to whether the defendant was authorized to loan this money, I charge you that an authority to loan the money would not be an authority to the defendant to borrow it himself.

To find with the defendant that he was authorized to loan the money you would also have to find that he was authorized to borrow it, because the authority of an agent to loan presupposes that the agent is to stand in the shoes of the principal, and, as a principal could not borrow money of himself, neither can an agent borrow money of his principal in his hands, or subject to his conr trol, as a trust fund, under a general arrangement to loan the money of the principal.” It is urged against this instruction that it charged the jury to convict the plaintiff in error unless they found that he was authorized to borrow Fleet’s money, and that it assumed as an established fact that he had borrowed a part of the money and ignored his testimony to the contrary.

The trial court regarded the testimony of the plaintiff in error as an admission in open court that at the time of making the report to the Comptroller a portion of Fleet’s money had been borrowed by himself, and in that view we think the court was undoubtedly correct. The plaintiff in error, on his direct examination, acknowledged that he had drawn out $2,781.50 of Fleet’s money on a check to which he had affixed Fleet’s name, and that he executed his note to Fleet therefor, payable on demand, which note he had retained in his possession, but was unable to produce at the trial.

In answer to the question whether he could state the purpose for which that money was used by him, he answered: “I can. It paid a number of items, but I don’t remember. * * * “Q. I will ask you to state, Mr. May, if you have any recollection as to what became of that money? A. I did not. * * * “Q. Then you say there was no interest? If there was interest, if there was any charged or credited on the bank books, what would that interest be for? A. There might have been some interest credited to his account by the parties on these loans, by Kipp, the Triune, myself, and others. * * * “Q. How many loans did you make?

A. I made a number. “Q. State what they were? A. To Redhead & Kipp, to the Triune mine, to myself, and various payments. “Q. Well, who else besides the Triune mine and yourself? A. I don’t think of any one else. * * * “Q. Then, these only loans that you had out, excepting that Redhead & Kipp that was put back and through the books of the bank, were to yourself and to the Triune mine? A. That is correct. * * * “Q. Don’t you remember the rate of interest you were getting for him from yourself? A. Why I don’t believe I figured any interest on myself. “Q. Oh, he didn’t get any interest on yours? A.

No; I don’t think it, that interest was all to he figured. Mr. Fleet did not want his money, as I understood. He never asked for it. The money was ready at any time he wanted it. I could have paid that at any moment, and the interest will be figured when the loan is figured.” This evidence shows heyond any question that the $2,781.50 drawn out by the plaintiff in error was borrowed by himself and for himself. Counsel for plaintiff in error point to the following testimony as indicating that there was evidence to the contrary: “Q. Did you tell Mr.

Fleet anything about your going to borrow the money yourself when he left? A. Mr. Fleet was in the East, I guess, or Coulee City. X don’t know where he was at the time. “Q- No; I mean when you made your arrangement? A. No; I never borrowed that money for myself, anyway. I paid that money out to some other people, and gave my note for it.” But this does not contradict the testimony quoted above nor detract from its force. It means, if it means anything, that the plaintiff in error used the money to pay his own obligations to other people.

He nowhere attempted to say that he loaned any of that money to others, or that any of it was recoverable from others. He did not even remember to whom he paid it. In view.of these solemn admissions made by the plaintiff in error in open court, the trial court was justified in charging the jury as it did.

But, for that evidence, the following sentence singled out of the instruction would have been error: “To find with the defendant that he was authorized to loan the money you would also have to find that he was authorized to borrow it”— for the authority to loan does not include the authority to borrow, and the plaintiff in error might have had authority to loan the money without possessing authority to borrow it.

But what the court said to the jury by that sentence of the instruction was that, to find with the defendant that he was authorized to loan the money in the way in which he testified that he did loan it, they would also have to find that he was authorized to borrow, because upon his own admission he did borrow a part of the money.

The instruction is to be read in connection with other portions of the charge, among which are to be found the following: "It is a fundamental principle of our law that one charged with crime is presumed to be innocent. * * * If you find the defendant guilty, you must do so from the proofs admitted in evidence which establishes his guilt to your satisfaction beyond a reasonable doubt. * * * It is not sufficient to be satisfied beyond a reasonable doubt as to certain allegations of the indictments, but you must be satisfied beyond a reasonable doubt as to every material matter necessary to constitute the offense or forming an essential part of it. * * * You must find that the defendant purposely, unlawfully, willfully, and intentionally committed the acts before you can convict him, and this applies to every charge which you are to pass upon.” Referring to the deposit by Fleet, the court instructed the jury as follows: ; “If he deposited money in the bank and It was withdrawn without his knowledge, or under his direction, or with his consent, then he still had a deposit of,that amount of money. * * * If it was not checked out by his authority, or with his knowledge or consent, or with the defendant, honestly beli.eving he had a right to cheek it out, then it was still an individual deposit. * * * It follows; of course, that in considering the case upon those issues \yhich have thus far been mentioned to you that if the defendant was not authorized by W.

H.

Fleet to loan out his money and the defendant had no reasonable ground to think so, even if not authorized, that a conviction must follow, and, if he was, then no conviction can be had.” On the subject of intent, the court charged: “But the intent with which these acts were done, if you find they were done, is to be particularly observed. * * * It is for you to find beyond a reasonable doubt that it was with the intent to deceive an agent appointed by the Comptroller to examine into the affairs of the bank. * * * The defendant has testified specifically that he had no intent to injure any one or defraud any one, and that you must consider with all the testimony in the case. * * * Therefore you will consider the evidence of the defendant as to his intent having regard to this principle of law, and the acts you find to have been committed, considering his evidence with all the other testimony In the case, giving such credence to his statement that he did not intend to defraud or deceive as you think under the circumstances It is entitled to.” There are several other assignments of error presented in the record which we have examined with care, but which we find it unnecessary to discuss further than to say that we find no reversible error.

The judgment is accordingly affirmed.