Messrs. Homer S. Cummings, Atty. Gen., and Brien McMahon, Asst. Atty. Gen., for the United States.
[ U.S. v. Giles 300 U.S. 41 (1937) ] [300 U.S. 41 , 42]
Mr. Will A. Morriss, of San Antonio, Tex., for respondent.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Section 5209, R.S.,1 as amended by Act Sept. 26, 1918, c. 177, 7, 40 Stat. 967, 972 (U.S.C., title 12, 592 (12 U.S.C.A. 592 and note)) provides: [300 U.S. 41 , 43] 'Any officer, director, agent, or employee of any Federal reserve bank, or of any member bank * * * who makes any false entry in any book, report, or statement of such Federal reserve bank or member bank, with intent in any case to injure or defraud such Federal reserve bank or member bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of such Federal reserve bank or member bank, or the Comptroller of the Currency, or any agent or examiner appointed to examine the affairs of such Federal reserve bank or member bank, or the Federal Reserve Board * * * shall be deemed guilty of a misdemeanor, and upon conviction thereof in any district court of the United States shall be fined not more than $5,000 or shall be imprisoned for not more than five years, or both, in the discretion of the court.'
Count 3 of an indictment in the United States District Court, Western District of Texas, charged that respondent, Giles, while employed as teller by the Commercial National Bank of San Antonio, Tex., a member of the Federal Reserve National Bank of Dallas, did 'unlawfully, knowingly, wilfully, fraudulently, and feloniously make and cause to be made in a book of the said The Commercial National Bank of San Antonio, Texas, known as the Individual Ledger, in the account designated 'S.A. Public Service Company,' under date of 'Jul 25 '33' in the column bearing the printed heading 'Balance,' being the fifth entry from the top of the column aforesaid, and directly opposite the machine printed date thereon 'July 25 33,' a certain false entry in the following figures, to wit, '7,874.07,' which said entry so made as aforesaid, purports to show and does in substance and effect indicate and declare that The Commercial National Bank of San Antonio, Texas, was indebted and liable to the San Antonio Public Service Company in the amount of Seven Thousand Eight Hundred Seventy-Four [300 U.S. 41 , 44] Dollars and Seven Cents ($7,874.07) on July 25, 1933, whereas in truth and in fact said indebtedness and liability on said date was a different and much larger amount.'
Count 4 made a like charge relative to the account of the National Life & Accident Insurance Company.
He was tried, found guilty, and sentenced under both counts. The point for our decision is whether the trial court erred in refusing to direct a verdict of not guilty. The essential facts are not in dispute.
From the evidence it appears-
Giles, once bookkeeper for the Commercial National Bank, became first paying and receiving teller with custody each day of some $35,000 cash. His duty was to receive deposits and place accompanying slips or tickets where they would reach the bookkeepers for entry. Eighteen months prior to the alleged offense, he discovered shortage in his cash but made no report to his superiors. To cover up the shortage he resorted to the practice of withholding selected deposit slips for three or four days before permitting them to reach the bookkeeping department. This caused the ledger to show false balances. Other shortages occurred; July 25, 1933, the total stood at $2,650.
On that day he accepted deposits with proper tickets from San Antonio Public Service Company and National Life & Accident Insurance Company for $ 1,985.79 and $663.27, respectively, accompanied by cash and checks. Together these approximated his shortage. He withheld both tickets from the place where they should have gone and secreted them. If placed as usual and as his duty required, they would have reached the bookkeeper during the day. Entries on the ledger would have shown the depositors' true balances.
The Bank closed July 29th. The slips never reached the bookkeeper. The individual ledger accounts at the [300 U.S. 41 , 45] end of the 25th and thereafter understated the liability of the Bank to the depositors.
The respondent acknowledged his purpose in withholding the deposit tickets was to prevent officers and examiners from discovering his shortage. Some excerpts from his testimony are in the margin. 2 [300 U.S. 41 , 46] At the conclusion of the evidence counsel moved for a directed verdict of not guilty. This was denied. The jury found guilt under both counts; an appeal, with many assignments of error, went to the Circuit Court of Appeals.
That court declared: 'The serious question presented for decision is whether the law will support a conviction on an indictment charging that defendant caused the false entries to be made.'
Dissenting, one judge said:
Counsel for the respondent now affirm: 'There is no dispute as to the facts.' 'The act committed by the defendant was the withholding by him and the failure by him to turn over to the Bookkeeping Department in the usual course of the bank's business a deposit slip.' He did not cause any false entry to be made. Personally he made no such entry; he did not affirmatively direct one. By withholding the ticket he prevented an entry; he caused none.
The rule, often announced, that criminal statutes must be strictly construed does not require that the words of an enactment be given their narrowest meaning or that the lawmaker's evident intent be disregarded. United States v. Corbett, 215 U.S. 233, 242 . Here the purpose to insure the correctness of bank records by prescribing punishment for any employee who, with intent to deceive, etc., deliberately brings about their falsification is plain enough. The statute denounces as criminal one who with intent, etc., 'makes any false entry.' The word 'make' has many meanings, among them 'To cause to exist, appear or occur,' Webster's International Dictionary, (2d Ed.). To hold the statute broad enough to include deliberate action from which a false entry by [300 U.S. 41 , 49] an innocent intermediary necessarily follows gives to the words employed their fair meaning and is in accord with the evident intent of Congress. To hold that it applies only when the accused personally writes the false entry or affirmatively directs another so to do would emasculate the statute-defeat the very end in view.
Morse v. United States, 174 F. 539, 547, 553, 20 Ann.Cas. 938-Circuit Court of Appeals, Second Circuit-gave much consideration to an indictment and conviction under R.S. 5209. The court said: 'It is true that the defendant did not make any of the entries in the books or reports with his own pen. All of them were made by the employees of the bank as part of their routine work. If it were necessary to prove against a director that he actually made the entry charged to be false, conviction under the statute would be impossible, as these entries are invariably made by subordinates in the executive department. Congress was not seeking to punish the ignorant bookkeeper who copies items into the books as part of his daily task, but the officers who conceived and carried out the fraudulent scheme which the false entry was designed to conceal. It is wholly immaterial whether such officer acts through a pen or a clerk controlled by him.' It seems to us that defendant is as fully responsible for any false entries which necessarily result from the presentation of these pieces of paper which he caused to be prepared as he would if he had given oral instructions in reference to them or had written them himself.'
We agree with the view so expressed in that opinion. United States v. McClarty (D.C.) 191 F. 518 and 523, apparently is in conflict with our conclusion.
The record leaves us in no doubt that the false entries on the ledger were the intended and necessary result of respondent's deliberate action in withholding the deposit tickets. Within the statute he made them. [300 U.S. 41 , 50] The judgment of the Circuit Court of Appeals must be reversed. The District Court will be affirmed.
[ Footnote * ] Rehearing denied 300 U.S. 687 , 81 L.Ed. -.
[ Footnote 1 ] Section 5209, R.S., title LXII, National Banks, c. 3: 'Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure 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.'
[ Footnote 2 ] 'My actual shortage was $2,650.00 that had shown up without my having any responsibility for it. The only way it could be carried was holding out deposit tickets to offset the shortage in the cash, and on the 25th of July withholding these two deposits, the San Antonio Public Service and the National Life & Accident, and depositing the two tickets that had been held over from the 21st.
'Asked if by putting deposit slips in a place where he would not get them and I knew he would not get them, I had that much control over the bookkeepers, yes, sir, by holding them out, of course, he would not get them.