Potter v. United States (155 U.S. 438)
Asa P. Potter, president of the Maverick National Bank, was indicted for violation of the banking law. From a conviction (56 Fed. 83, 97), defendant brings error.

By section 5208 of the Revised Statutes, it is provided that '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.'

No penalty was imposed on the individual for a violation of this section. But on July 12, 1882 (22 Stat. 166), it was enacted:

'Sec. 13. That any officer, clerk, or agent of any national banking association who shall wilfully 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,' etc.

In May, 1892, the defendant was indicted in the circuit court of the United States for the district of Massachusetts for a violation of these sections. The indictment contained 88 counts. By demurrer and nolle, the last 48 counts were disposed of before the trial, which proceeded upon the first 40. In these 40 counts the unlawful certification of 5 checks was charged; the first 8 counts relating to one check, the next 8 to another, and so on. The case came on for trial in February, 1893, and resulted in a verdict of guilty on 15 counts,-3 in respect to the certification of each check. A motion for a new trial having been overruled, the defendant was sentenced to pay a fine of $1,000, and to be imprisoned in jail for the term of 60 days. To reverse this judgment the defendant has brought this writ of error.

The third count in the indictment, which was one of those upon which the defendant was found guilty, after stating time and venue, and that the defendant was president of the Maverick National Bank, and authorized to lawfully certify checks, charged 'that said Potter, as such president as aforesaid, did then and there, to wit, on said twenty-third day of July, at Boston aforesaid, within said district, and within the jurisdiction of this court, unlawfully, knowingly, and willfully certify a certain check, which said check was then and there drawn upon said association for the amount of twenty-four hundred and fifty dollars by certain persons, to wit, Irving A. Evans, Austin B. Tobey, and William S. Bliss, copartners, then and there doing business under the firm name and style of Irving A. Evans & Company, and which said check was then and there of the tenor following, that is to say:

Irving A. Evans & Co.

"BOSTON, Jul- 23, 1891, $2,450. No. 54493.

"Maverick National Bank.

"Pay to the order of Hayward & Townsend $2,450, twenty-four hundred & fifty dollars.

"IRVING A. EVANS & C-.'

-by then and there writing, placing, and putting in and upon and across the face of said check the words and figures following, that is to say:

"Maverick National Bank.

"Certified Jul- 23, 1891.

"Pay only through clearing-house.

"A. P. Potter, P.'

[meaning said Asa P. Potter, such president as aforesaid].

"_ _, Paying Teller.' 'That the said persons, as copartners under the firm name and style as aforesaid, by whom said check was then and there drawn as aforesaid, did not then and there, to wit, at the time said check was so certified by said Potter as aforesaid, have on deposit with said association an amount of money then and there equal to the amount then and there specified in said check, to wit, the amount of twenty-four hundred and fifty dollars in money, as he, the said Potter, then and there well knew,-against the peace and dignity of the said United States, and contrary to the form of the statute in such case made and provided.'

All the counts upon which the defendant was found guilty, both in respect to this and the other checks, were, so far as any question is involved in this case, substantially like the one quoted.

On the trial the books of the bank were presented, showing that at the times these five checks were certified the account of Evans & Co. was overdrawn in a large sum,-between $100,000 and $200,000. There was testimony tending to show that upon each day that these checks were certified, and prior thereto, Evans & Co. deposited in cash an amount more than sufficient to cover the certifications. Thereupon, as the bill of exceptions shows:

'The defense called the defendant, Mr. Potter, and offered to prove by him an oral agreement between I. A. Evans & Co. and the Maverick National Bank, in the early part of 1891, before June or July, 1891, that Evans & Co. might have a loan by overdraft limited to $200,000, with interest to be charged daily at the rate of six per cent., against which collateral was to be put up, and further to show that the overdrafts existing in June and July, 1891, were under this agreement, and that collateral was actually deposited and kept against it in the hands of the assistant cashier; that this agreement was communicated to the executive officers of the bank, and to a majority of the directors of the bank, who approved it, and this offer was made in connection with the facts that appear in evidence in relation to the books of the bank. Also, the defense offered another conversation between Mr. Potter and Mr. Evans in relation to the matter of certification of checks and deposits connected with this certification, in which Mr. Evans called his attention to the fact that a check had been refused certification, and Mr. Potter told Mr. Evans that it was undoubtedly because he had no deposit there, whereupon Mr. Evans said, 'But I have a loan, as I understand it,' to which Mr. Potter replied substantially: 'We cannot certify checks against a loan. If you are going to have certified checks, you must have deposits in the bank to certify them against,'-and that from that time forward the deposits were in, to Mr. Potter's knowledge, from day to day after this conversation with Mr. Evans, in which the defense claims that the parties to the conversation understood distinctly that the daily deposits were to be in for the very purpose of certifying checks.

'This whole offer was made by the defense as material matter of substantive defense, as a part of the res gestae and of the transaction, and as specifically bearing upon the question of criminal intent upon the part of the defendant. The facts 'that appear in evidence in relation to the books of the bank,' as referred to in the above offer, and in connection with which the offer is made, are heretofore fully stated in this bill of exceptions.'

And in pursuance of this offer the defendant asked the witness certain questions, for the purpose of showing a state of facts, as indicated in the offer, but the testimony was rejected; the court saying, in response to an inquiry of counsel as to whether 'a definite agreement' was ruled out:

'Yes, sir; I rule out anything that does not appear on the books of the bank in connection with this deposit. I think what was on deposit and not on deposit, as the case now stands, must be determined by what appears on the books of the bank,-as this case now stands,-and the papers of the bank.'

Exceptions were duly taken to the action of the court in this respect.

Among other instructions to the jury was the following:

'But upon some reflection, I have come to the conclusion that notwithstanding Evans & Co. may have been overdrawn on the morning of any particular day, and during the whole of that day, yet if the bank did in fact receive a special deposit, and set aside certain checks or other moneys, and hold them for the purpose of covering the certified checks, that it would not be any violation of the letter or policy of the statute, and would be a defense. But I must say, gentlemen, that I am unable to see in this case any evidence that anything of that sort was done. I am unable to see in the case any evidence,-I do not mean to say evidence of what was intended or agreed to be done, which is not essential to this case, but any evidence that, as a matter of fact, any of these checks deposited by Evans & Co. did not go into the general deposit account, and were not absorbed the instant they passed into the bank. Upon this branch of the case, I instruct you the burden of proof is on the defense,-not proof beyond a reasonable doubt, but to satisfy you by a preponderance of evidence. If the defense does satisfy you, by the preponderance of evidence, that there was a segregation in fact appearing upon or shown from the books and papers of the bank,-a segregation, a setting apart, of certain deposits, sufficient to cover the certified checks, and against which the checks were certified,-it is a defense in this case.'

To the giving of which instruction the defendant at the time duly excepted.

W. S. B. Hopkins and Henry D. Hyde, for plaintiff in error.

Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. 

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