Spurr was tried in the Circuit Court of the United States for
the Middle District of Tennessee on three indictments, consolidated
together, each of which charged him with having willfully violated
the provisions of Rev.Stat. § 5208 by willfully, unlawfully
and knowingly certifying certain cheques drawn on said bank by
Dobbins and Dazey, well knowing that Dobbins and Dazey did not have
on deposit with the bank at the times when the cheques were
certified, respectively, an amount of money equal to the respective
amounts specified therein. It was not denied that the defendant
certified the cheques, and that the account of Dobbins and Dazey
was overdrawn when the certifications took place. The questions for
determination were defendant's knowledge of the state of Dobbins
and Dazey's account when the cheques were certified and his intent
in the certifications. After the case had been committed to the
jury, and they had had it under consideration for some hours, they
returned to the courtroom and asked the following question, which
was written out: "We want the law as to the certification of
cheques, when no money appeared to the credit of the drawer." The
court read to the jury the first half of Rev.Stat. § 5208, as
follows:
"It shall be unlawful for any officer, clerk or agent of any
national banking association to certify any cheque drawn upon the
association unless the person or company drawing the cheque has on
deposit with the association at the time such cheque is certified,
an amount of money equal to the amount specified in such
cheque."
The court then inquired: "Does this answer your question?" To
which the foreman replied: "Yes, sir." The court again read that
part of the section, and made certain observations; among others
that a false certification was "the certifying by an officer of the
bank that a cheque is good when there are no funds to meet it." As
the jury were retiring, counsel for defendant said to the court
that he thought what the jury wanted was the act of 1882 which the
court had read to them, and that the court ought to read and
explain that act to the jury. That act provided that an officer,
clerk or agent of a national bank willfully violating the
provisions of Rev.Stat. § 5208, etc., "should be deemed guilty
of a misdemeanor, and should, on conviction, . . . be fined," etc.
The court, after asking if the counsel referred to the act
prescribing a penalty for false certification, and receiving an
answer in the affirmative, said that the jury had nothing to do
with that.
Held that the circuit court clearly erred in
declining the request of counsel in respect of the act of 1882.
Page 174 U. S. 729
Spurr was tried in the Circuit Court of the United States for
the Middle District of Tennessee on three indictments, each
containing several counts, for the violation of section 5208 of the
Revised Statutes, which provides:
"It shall be unlawful for any officer, clerk, or agent or any
national banking association to certify any check drawn upon the
association unless the person or company drawing the check has on
deposit with the association at the time such check is certified,
an amount of money equal to the amount specified in such check. Any
check so certified by duly authorized officers shall be a good and
valid obligated against the association, but the act of any
officer, clerk, or agent of any association in violation of this
section shall subject such bank to the liabilities and proceedings
on the part of the Comptroller as provided for in section fifty-two
hundred and thirty-four."
By section 13 of the Act of congress approved July 12, 1882, 22
Stat. 162, c. 290, it is provided:
"That any officer, clerk, or agent of any national banking
association who shall willfully violate the provisions of an act
entitled 'An act in reference to certifying checks by national
banks,' approved March third, eighteen hundred and sixty-nine,
being section fifty-two hundred and eight of the Revised Statutes
of the United States, or who shall resort to any device, or receive
any fictitious obligation, direct or collateral, in order to evade
the provisions thereof, or who shall certify checks before the
amount thereof shall have been regularly entered to the credit of
the dealer upon the books of the banking association, shall be
deemed guilty of a misdemeanor, and shall, on conviction thereof in
any circuit or district court of the United States, be fined not
more than five thousand dollars, or shall be imprisoned not more
than five years, or both, in the discretion of the court."
The indictments charged that Spurr, being the president of the
Commercial National Bank of Nashville, Tenn. willfully violated the
provisions of section 5208 of the Revised Statutes by willfully,
unlawfully, and knowingly certifying certain checks drawn on said
bank by Dobbins & Dazey, well
Page 174 U. S. 730
knowing that Dobbins & Dazey did not have on deposit with
the bank at the times when the checks were certified, respectively,
an amount of money equal to the respective amounts specified
therein. They were consolidated and tried together, and a verdict
of guilty returned as follows:
"Came the United States attorney, and also the defendant in
proper person, and came also the jury heretofore impaneled, and
upon their oaths do say that they find the defendant guilty as
charged in the indictment, and recommend him to the mercy of the
court."
Motions for new trial and in arrest of judgment were made and
overruled, and judgment entered on the verdict in these words:
"And thereupon the United States, by its district attorney,
moved the court for sentence upon the verdict of the jury
heretofore rendered, upon count No. 2 of indictment No. 7,994,
count No. 2 of indictment No. 8,139, counts Nos. 1 and 4 of
indictment No. 7,994, count No. 3 of indictment No. 8,139, count
No. 2 of indictment 8,078, and count No. 5 of indictment No. 8,139.
The defendant was thereupon called upon by the court to stand, and
was asked by the court if he had anything further to say why the
sentence of the law should not be pronounced against him, and he
replied that he had nothing further to say than he had already
said, and the court, being cognizant of the facts attending said
verdict, and of the manner in which the issues found by said
verdict were submitted to the jury, finds, and so orders and
adjudges, that said verdict is applicable to indictment No. 7,994,
counts 1 and 4, and indictment No. 8,139, count 3, all of which are
based upon a check certified by the defendant dated January 3,
1893, and upon said verdict upon said counts of said indictments
the court orders and adjudges that the defendant be confined in the
penitentiary of the State of New York at Albany, New York, for two
years and six months from this date."
The several counts of the consolidated indictments charged the
certification by defendant of four checks drawn by Dobbins &
Dazey between December 9, 1892, and February 13, 1893, both
inclusive, on the Commercial National Bank, aggregating $95,641.95.
The bank was organized in 1884, and
Page 174 U. S. 731
defendant was its president and one Porterfield its cashier from
its organization to its failure, March 25, 1893. Dobbins &
Dazey were engaged in the purchase, sale, and exportation of
cotton, and their financial standing and credit were excellent.
When the four checks in question were certified by defendant, the
account of Dobbins & Dazey was overdrawn, and the evidence was
that their account was continuously and largely overdrawn during
the period covered by these checks, except on one day, and that
"this fact was known to Porterfield, the cashier, and all the
employees of the bank under him in authority." But
"there was also evidence tending to show that Porterfield
misrepresented the real state of the Dobbins & Dazey account to
the defendant and the committees and the directors of the bank by
statements made to them, and also in his sworn reports to the
Comptroller of the Currency, wherein the overdrafts in the bank
were very largely understated."
There was also evidence on behalf of defendant to the effect
"that he had no knowledge of the fact that the account of
Dobbins & Dazey was overdrawn on the books of the bank at the
time of the certification of any of the checks upon which he is
indicted, nor at any time during the period covered by the dates of
the checks;"
that, when he certified these checks, he inquired in every
instance, either of the cashier or of the exchange clerk, and in
every instance received information that sufficient funds and
credits of Dobbins & Dazey were then in the bank to cover the
checks certified, and that he never at any time certified a check
without receiving such information, and that he relied upon it as
true; that, if the cashier was in, he inquired of him, and, if not,
he inquired of the exchange clerk -- these being the appropriate
sources of information. The evidence on this head is given in much
detail in the bill of exceptions.
The bill of exceptions also stated:
"After the jury were charged and had retired from the courtroom
to consider their verdict, and had been deliberating for some
hours, they returned to the courtroom and asked the following
question, which was written out in pencil and handed to the court.
"
Page 174 U. S. 732
" We want the law as to the certification of checks when no
money appeared to the credit of the drawer."
"The court then said:"
" The jury state that they want the law as to the certification
of a check where there is no money to the credit of the
drawer."
" I cannot better answer this question which the jury has put to
the court than by reading the section of the Revised Statutes which
relates to that subject."
"[Reads from section 5208, Rev.Stat.:]"
" It shall be unlawful for any officer, clerk, or agent of any
national banking association to certify any check drawn upon the
association unless the person or company drawing the check has on
deposit with the association at the time such check is certified,
an amount of money equal to the amount specified in such
check."
" Does this answer your question?"
"Foreman of the Jury: 'Yes, sir.'"
"The Court: 'I read it again, so that you may all understand
it.' (The court read again that part of section 5208, Rev.Stat.,
quoted above, and added:)"
" Is that all, gentlemen? The $30,000 was the credit allowed,
and these overdrafts, as the court understands from the testimony
in the case, were in excess of that. The account of Dobbins &
Dazey -- the overdrafts -- were in excess of the amount which
Dobbins & Dazey had as a limit of line of credit."
" I charge you, in addition to the instructions I gave you this
morning, that a check drawn upon a bank where the drawer has no
funds creates no obligation against the bank, and it does not
create any obligation until it is certified as good by an officer
of the bank, and that makes the check good as to the holder of it,
and the bank then becomes estopped, although there was no warrant
for the drawing of the check, as against the
bona fide
holder, so that the obligation of the bank to meet it in such case
is made so by the act of the officer who certifies it to be good.
That is what is meant by 'false certification.' It is the
certifying by an officer of a bank that a check is good when there
are no funds there to meet it. "
Page 174 U. S. 733
" You understand what I have said now is to be taken in
connection with what I have before instructed you."
"As the jury were retiring, counsel for defendant said to the
court that he thought what the jury wanted was the act of 1882
making it a misdemeanor to willfully violate the section of the
Revised Statutes which the court had read to them, and that the
court ought to read and explain that act to the jury. The court
asked if counsel referred to the act prescribing the penalty for
false certification, and, on being answered in the affirmative,
stated that the jury had nothing to do with that."
"To this action of the court in reading twice section 5208 of
the Revised Statutes, and in failing to read and explain the act of
1882, in response to the jury's question, and to the additional
instructions given to the jury at this time, beginning with the
words 'The $30,000,' and ending with the words 'to meet it,' the
defendant then and there excepted."
Sentence having been pronounced as before stated, the case was
taken on error to the Circuit Court of Appeals for the Sixth
circuit, and the judgment was affirmed, 87 F. 701, whereupon the
cause was brought to this Court on certiorari.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
It was not denied that defendant certified the checks, and that
the account of Dobbins & Dazey was overdrawn when the
certifications took place. The questions for determination were
defendant's knowledge of the state of Dobbins & Dazey's account
when the checks were certified, and his intent in the
certifications.
Section 5208 made it unlawful for any officer, clerk, or
agent
Page 174 U. S. 734
of any national banking association to certify any check drawn
upon it unless the drawer of the check had on deposit, at the time
such check was certified, an amount of money equal to the amount
specified therein, and provided the consequences which should
follow on a violation of the section. Then came section 13 of the
Act of July 12, 1882, which made a willful violation of section
5208 criminal, and denounced a penalty thereon.
These sections were under consideration in
Potter v. United
States, 155 U. S. 438,
155 U. S. 445,
and the Court said:
"The charge is of a willful violation. That is the language of
the statute. Section 5208 of the Revised Statutes makes it unlawful
for any officer of a national bank to certify a check unless the
drawer has on deposit at the time an equal amount of money. But
this section carries with it no penalty against the wrongdoing
officer. Section 13 of the act of 1882 imposes the penalty, and
imposes it upon one 'who shall willfully violate,' etc., as well as
upon one 'who shall resort to any device,' etc., 'to evade the
provisions of the act,' 'or who shall certify checks before the
amount thereof shall have been regularly entered to the credit of
the dealer upon the books of the banking association.' The word
'willful' is omitted from the description of offenses in the latter
part of this section. Its presence in the first cannot be regarded
as mere surplusage; it means something. It implies on the part of
the officer knowledge and a purpose to do wrong. Something more is
required than an act of certification made in excess of the actual
deposit, but in ignorance of that fact, or without any purpose to
evade or disobey the mandates of the law. The significance of the
word 'willful' in criminal statutes has been considered by this
Court. In
Felton v. United States, 96 U. S.
699,
96 U. S. 702, it was
said:"
"Doing or omitting to do a thing knowingly and willfully implies
not only a knowledge of the thing, but a determination with a bad
intent to do it or to omit doing it. The word 'willfully,' says
Chief Justice Shaw, 'in the ordinary sense in which it is used in
statutes, means not merely 'voluntarily,' but with a bad purpose.'
20 Pick. 220. 'It is frequently understood,'
Page 174 U. S. 735
says Bishop, 'as signifying an evil intent without justifiable
excuse.' Crim.Law, vol. 1, § 428."
"And later, in the case of
Evans v. United States,
153 U. S.
584,
153 U. S. 594, there was
this reference to the words 'willfully misapplied':"
"In fact, the gravamen of the offense consists in the evil
design with which the misapplication is made, and a count which
should omit the words 'willfully,' etc., and 'with intent to
defraud,' would be clearly bad. . . ."
"While it is true that care must be taken not to weaken the
wholesome provisions of the statutes designed to protect depositors
and stockholders against the wrongdoings of banking officials, it
is of equal importance that they should not be so construed as to
make transactions of such officials, carried on with the utmost
honesty, and in a sincere belief that no wrong was being done,
criminal offenses, and subjecting them to the severe punishments
which may be imposed under those statutes."
The wrongful intent is the essence of the crime. If an officer
certifies a check with the intent that the drawer shall obtain so
much money out of the bank, when he has none there, such officer
not only certifies unlawfully, but the specific intent to violate
the statute may be imputed. And so evil design may be presumed if
the officer purposely keeps himself in ignorance of whether the
drawer has money in the bank or not, or is grossly indifferent to
his duty in respect to the ascertainment of that fact.
The defense was that defendant had no actual knowledge that
Dobbins & Dazey had not sufficient funds in the bank to meet
the checks, nor knowledge of facts putting him on inquiry; that, on
the contrary, he believed that they had such funds; that this
belief was founded on information he received from the cashier or
the exchange clerk, the proper sources of information, in response
to inquiries which he made in each instance before he certified;
that he honestly relied on that information, and that he had the
right to do so. Defendant was entitled to the full benefit of this
defense, and, in order to that, it was vital that the meaning of
"willful violation," as used in section 13 of the act of 1882,
should be clearly explained to the jury.
Page 174 U. S. 736
It appears from this record that, after the case had been
committed to the jury and they had had it under consideration for
some hours, they returned to the courtroom, and asked the following
question, which was written out: "We want the law as to the
certification of checks when no money appeared to the credit of the
drawer." The court then read to the jury the first part of section
5208 of the Revised Statutes, and inquired: "Does this answer your
question?" To which the foreman replied: "Yes, sir." The court
again read that part of the section, and made certain observations
-- among other things, that a false certification "is the
certifying by an officer of a bank that a check is good when there
are no funds to meet it."
The record shows that then,
"as the jury were retiring, counsel for the defendant said to
the court that he thought what the jury wanted was the act of 1882,
making it a misdemeanor to willfully violate the section of the
Revised Statutes which the court had read to them, and that the
court ought to read and explain that act to the jury. The court
asked if counsel referred to the act prescribing the penalty for
false certification, and, on being answered in the affirmative,
stated that the jury had nothing to do with that."
Exception was taken to the reading twice of the part of section
5208, and the failure to read and explain the act of 1882, and to
the additional instructions given by the court.
We think that the learned circuit judge clearly erred in
declining the request of counsel in respect of section 13.
It is true that it was not part of the function of the jury to
fix the penalty, and the remark of the court, "that the jury had
nothing to do with that," undoubtedly referred to the penalty only,
though, as the matter appears in the record, the jury may well
enough have understood it differently. But it was the act of 1882
that made the certification of checks, if in "willful violation" of
section 5208, a criminal offense, and the word "willful" "implies
on the part of the officer knowledge and a purpose to do wrong,"
and plainly it was in relation to the point of "willful violation"
that counsel wished the court to read and expound that section. It
seems to us that it
Page 174 U. S. 737
was the duty of the court to do so, if the question put by the
jury was answered at all, since "the law as to the certification of
checks when no money appeared to the credit of the drawer" involves
civil consequences under section 5208, and criminal consequences
under section 13, unless it is to be held that every certification
where funds are lacking constitutes a willful violation of section
5208. We cannot accept the view that because when the court asked
the jury whether the first part of section 5208 answered their
question, the foreman replied in the affirmative, therefore there
was no error in the failure to call their attention to section 13.
If the court was satisfied that the law applicable to the case was
embodied in the first part of section 5208, the jury were bound to
be satisfied also; but we are of opinion that that was an
insufficient definition, and was therefore erroneous. However, the
court went further, and said:
"I charge you, in addition to the instructions I gave you this
morning, that a check drawn upon a bank where the drawer has no
funds creates no obligation until it is certified as good by an
officer of the bank, and that makes the check good as to the holder
of it, and the bank then becomes estopped, although there was no
warrant for the drawing of the check, as against the
bona
fide holder; so that the obligation of the bank to meet it in
such case is made so by the act of the officer who certified it to
be good. That is what is meant by 'false certification.' It is the
certifying by an officer of a bank that a check is good when there
are no funds there to meet it."
"You understand what I have said now is to be taken in
connection with what I have before instructed you."
We fear that these instructions, following in direct connection
with what had passed in reference to section 5208, may have led the
jury to understand the law of the case to be that the false
certification thus defined constituted a criminal offense under the
statute, and that that impression was not rendered harmless by the
admonition that what was then said was to be taken with what had
been said before.
At all events, we think it would be going too far to hold
Page 174 U. S. 738
that that caution operated to obviate the error in failing to
explain section 13 at this particular juncture. The jury had been
considering their verdict for several hours, and had then, in
effect, requested a more complete definition of the offense. This
the courts assumed to give, but it was incomplete, and what was
omitted cannot properly be held to have been supplied, under the
circumstances, by the reference to prior instructions. The court
had, indeed, in the original charge, used the words "willfully" and
"willful" in the following instructions:
"If you find from the proof that the account of Dobbins &
Dazey upon the books of the bank was overdrawn continuously during
the period covered by the dates of the checks certified by the
defendant, and that the defendant was in fact ignorant of such
overdraft, and that he certified the several checks mentioned in
the indictment believing at the time that the exchange deposited by
Dobbins & Dazey on the days upon which said checks were
certified were sufficient, or more than sufficient, to cover the
amount of said checks, besides the overdraft already existing, then
he is not guilty, and you should acquit him, unless such ignorance
of the overdraft was willful, as elsewhere explained in the court's
instructions. In this connection, you will bear in mind what I have
previously charged you -- that if this was a general, and not a
special, account of Dobbins & Dazey, that the exchange which
came in was applicable in the first place to the liquidation of the
previously existing overdraft before there could be said to be any
funds to the account of Dobbins & Dazey to respond to the
checks."
"If the proof fails to satisfy your minds clearly and beyond a
reasonable doubt that the defendant did actually know at the time
he certified the checks mentioned in the indictment, that Dobbins
& Dazey did not have on deposit in the bank sufficient funds
and credits to meet the checks so certified, then you should acquit
him unless you are convinced by the proof, beyond a reasonable
doubt, that he willfully, designedly, and in bad faith -- these
words mean substantially the same thing -- shut his eyes to the
fact, and purposely refrained
Page 174 U. S. 739
from inquiry or investigation for the purpose of avoiding
knowledge."
The court had also said that
"in general, if the defendant acted in good faith in making
these certifications, believing that the state of the account of
Dobbins & Dazey justified it, he is not guilty of the offense
charged. Mere negligence or carelessness, unaccompanied by bad
faith, would not render him guilty."
And other passages of similar purport might be quoted.
But the jury desired further advice as to what constituted
criminal certification, or willful violation of section 5208, and
preferred a request which required a comprehensive answer. The
response was in the nature of a separate charge, and we are unable
to conclude that the error in declining at that time to call
attention to section 13 was cured by the bare reference to the
original charge.
Many other errors were assigned, and pressed in argument, but,
as the particular points may not arise in the same way on another
trial, we prefer to refrain from expressing any opinion upon
them.
The judgment of the circuit court of appeals is reversed.
The judgment of the circuit court is also reversed, and the cause
remanded to that court with a direction to set aside the verdict
and grant a new trial.
MR. JUSTICE BROWN and MR. JUSTICE McKENNA dissented.
