jury said: "If loans and discounts are made by the president of a national bank in bad faith for the fraudulent purpose of giving gain or advantage to some other person or company, and not in the honest exercise of official discretion, the officer making them passes the line dividing honesty and dis⚫honesty, and his action is criminal if done with intent to injure and defraud the banking association, and it so results."

The accused could not properly single out the absence of one of several possib ossible motives for the commission of an offense, isolate it in an instruction from all the other facts of the case, and demand that the court instruct the jury as to the weight to be given this particular fact, independent of all the other proof in the case. The charge as a whole having correctly conveyed to the jury the rule by which they were to determine from all the evidence the question of intent, we think there was no error to the prejudice of the defendant in refusing the request which he asked.

V. This point alleges error in the refusal of the court to give two instructions requested by plaintiff in error, one to the effect that the allowance of mere overdrafts was not of itself sufficient to show any criminal intent on the part of Haughey, and the other, that notwithstanding that the statute forbids loans to any one person in excess of 10 per cent of the capital stock, that such loan, although unlawful, was not for that reason alone criminal. The first instruction referred to is, in substance, given in various parts of the charge of the court. Thus the court instructed the jury:

"On the counts for wilful misapplication the questions for you to determine are: Did Theodore P. Haughey, as president of the Indianapolis National Bank, knowingly and unlawfully and with intent to injure and defraud said bank in manner and in form as charged, wilfully misapply the moneys, funds, or credits of said bank by cashing, dis676] counting, and paying for the *use and benefit of the said Indianapolis Cabinet Company, knowing it to be insolvent, out of the moneys, funds, and credits of the bank with out authority from its board of directors, any notes, drafts, or bills of exchange drawn by and upon insolvent persons, firms, and companies, knowing them to be insolvent, and knowing such notes, drafts, or bills of ex change to be valueless, in manner and form as charged in either count of the indictment? If he did, he has committed the offense of wilful misapplication as charged in the count or counts of the indictment now on trial relating to that subject which you find to have been so proved."

The court also said:

"If Haughey and the defendants withdrew moneys from the bank for the use of the cabinet company by means of checks drawn by it on said bank when it had no funds or moneys on deposit against which to draw, if they acted in good faith, honestly believing that the cabinet company would be able to repay the same when required, they would not be guilty of the intent to defraud the bank as charged; but, on the other hand, if they

acted in bad faith and did not believe and had no reasonable ground to believe that the cabinet company could repay such overdrafts when required to do so, then they had no lawful right to make such overdrafts or allow them to be made."

We think the second requested instruction was also fully covered in the charge actually given.

VI. The refusal to give the following instruction was assigned as error:

"18. The counts of the indictment relating to misapplication charge a misapplication of the moneys of the bank. These charges of misapplication are not sustained by merely showing that the bank gave to the cabinet company credit to which it was not entitled, unless it is also shown that as a result of such credit the cabinet company was enabled to and did withdraw from the bank moneys of some kind, resulting in loss to the bank. Thus, evidence of the giving by the cabinet company, and the receiving by the bank, of renewal paper upon which nothing was withdrawn from the bank, would not sustain the *charge of criminal misapplication of [677 the credits of the bank."

There is no doubt of the soundness of the abstract principle which this request embodied. If the money of a bank be misapplied by paying it out on worthless paper, it is obvious that a subsequent renewal of such paper upon which nothing was actually obtained could not have misapplied the money of the bank. Whilst this is true in the abstract, the refusal to give, when requested, a correct legal proposition, does not constitute error, unless there be evidence rendering the legal theory applicable to the case. Stryker v. Crane, 123 U. S. 527 [31: 194], and authorities there cited.

The bill of exceptions contains the following statement relative to the ninth count, to which it is asserted the instruction asked related:

Be it further remembered that there was evidence tending to show that the transactions mentioned in the ninth count of the indictment consisted solely of the taking up by the Indianapolis Gabinet Company of two crafts theretofore drawn by it upon customers and discounted by said bank, and which had not been paid or accepted by the drawees, the aggregate amount of said drafts being $3,467.23. by a new draft drawn by said Indianapolis Cabinet Company on one of the drawees in the drafts taken up for the sum of $3,467.23, and that there was evidence tending to show that the drawee in said lastmentioned draft was, at the time the same was drawn and accepted by said bank, solvent and indebted to the cabinet company in an amount greater than the amount of said draft, for which said company had a right to draw.

"There was evidence tending to show that the drawee in said draft above mentioned was, at the time the same was drawn and placed in said bank, insolvent, and said draft was never forwarded for acceptance or collection, but was held by the direction of Theodore P. Haughey in said bank, and that said defendant knew that the drawee of said draft always refused to accept or honor drafts, and

Again, in the opening paragraph of the charge, it was said: You are the sole judges of the facts and of what is proved, and any statements of fact made by the court are not controlling upon you. Such statements are intended to invite your attention to the matters of fact which the court deems important, and not for the purpose of controlling your judgment."

In the earlier portions of the charge it was especially left to the jury, when considering whether or not an offense had been commit681] ted, *to determine whether the money had been obtained by the cabinet company on worthless paper, or by payments made by the bank on checks of the company when it was insolvent and its account with the bank was overdrawn. The jury were also in structed at length with reference to the charge contained in the indictment, that divers per sons, firms, and corporations were insolvent. We give an extract from the charge on this subject:

"If you are satisfied that the Indianapolis Cabinet Company, or any other person, firm, or corporation alleged to have been insolvent at the time charged, had not sufficient property or assets to pay its debts in full when wound up, then such person, firm, or corporation was insolvent in manner and form as charged in the indictment."

Keeping in mind the repeated cautions given by the court to the jury, it is impossible to perceive how the language of the court in the matter excepted to could have been understood by the jury as binding them to accept, as controlling, the statements of the court regarding the facts.

IX. The giving of the following instruction was assigned as error No. 55:

"In order to make the defendants liable as aiders and abettors, as charged in the indictment, it is necessary that they should be proved to have done or said something show ing their consent to or participation in the unlawful and criminal acts of Theodore P. Haughey, and contributing to their execution as charged in the indictment."

It is complained that the instruction was erroneous because it assumes that Haughey had committed a criminal offense, and that the defendants were liable as aiders and abet tors, if it was shown that they either consented to or participated in the unlawful and criminal acts of the president.

But prior to this portion of the charge the court directly instructed the jury that the guilt of Haughey was necessary to be established by the government. Following the instruction above quoted, the court also said:

"The burden of proving Haughey and the 682] defendants *guilty as charged ros s upon the government, and this burden does not shift from it.

you of the guilt of Haughey and the defendants as charged to the exclusion of every reasonable doubt."

It is not possible that the jury could have supposed that the court intended, from the portion of the charge claimed to be erroneous, that the acts of Haughey were "to be accepted and treated by them as criminal acts."

So, also, the jury could not have been misled, by the use of the disjunctive "or," into supposing that the court instructed them that mere consent of the defendants to the unlawful and criminal acts of Haughey would be sufficient to sustain a verdict of guilty. The consent or participation was required to be such as "contributed to the execution of" the unlawful and criminal acts of Haughey charged in the indictment. From the entire context it is clear that the court required the jury to find participation as well as consent. For instance, the court in its charge said to the jury:

"If you are satisfied that Theodore P. Haughey did knowingly and purposely make or cause to be made the false entries as charged you cannot find the defendants guilty as aiders and abettors unless you are satisfied that they with like intent unlawfully and knowingly did or said something showing their consent to and participation in the unlawful and criminal acts of said Haughey and contributing to their execution."

X. This alleges error in the following portion of the charge of the court:

"If Haughey and the defendants withdrew moneys from the bank for the use of the cabinet company by means of checks drawn by it on said bank when it had no funds or moneys on deposit against which to draw, if they acted in good faith, honestly believing that the cabinet company *would be [683 able to repay the same when required, they would not be guilty of the intent to defraud the bank as charged; but, on the other hand, if they acted in bad faith, and did not believe, and had no reasonable ground to believe, that the cabinet company could repay such overdrafts when required to do so, then they had no lawful right to make such overdrafts or allow them to be made. "

But this instruction should be read in connection with the paragraph following, which is as follows:

"Every person is presumed to intend the natural and ordinary consequences of his own acts. Hence, if the natural and ordinary consequence of the acts of Haughey and the defendants, as shown by the proofs, were to injure and defraud the bank as charged, you would be authorized to find that such was their intent, if such intent is in harmony with the other proofs in the case."

It cannot be disputed that a bank president not acting in good faith has no right to permit overdrafts when he does not believe and has no reasonable ground to believe that the moneys can be repaid. And if, coupled with such wrongful act, the proof establishes that

a crime.

XI. This embraces assignments of error Nos. 49 and 50, which allege error in the giving of the following instructions:

"If, however, the entry truly represents an actual bona fide transaction, then it would not constitute a false entry.

"But if the paper was never accepted or discounted by him for the bank, but was simply left with the bank as a mere memorandum and not as a deposit and for the fraudulent purpose of enabling fictitious entries to be made on the books of the bank with the intent to deceive or defraud as charged, such entry on the books of the bank would constitute a false entry."

These sentences were contained in the fol. lowing paragraph of the charge of the court: "An entry knowingly and purposely made on the books of the bank, with intent to deceive or defraud, as charged, which represents as an actual transaction one which does 684]not*and did not exist, or an entry knowingly and purposely made, with intent to deceive and defraud, as charged, which in a material part falsely and untruly represents an actual and existing transaction, would constitute a false entry within the meaning of the statute. If, however, the entry truly

represents an actual bona fide transaction, then it would not constitute a false entry." The objection to this portion of the charge is that it assumes that an entry is false unless it represents a transaction entered into in good faith and without fraud. It is contended that this instruction is within the condemnation of this court as expressed in its former opinion (156 U. S. 463 [39: 494]), where it was said:

"The exception reserved to the charge act ually given by the court (on the subject of false entries) was well taken, because therein the questions of misapplication and of false entries are interblended in such a way that it is difficult to understand exactly what was intended. We think the language used must have tended to confuse the jury and leave upon their minds the impression that if the transaction represented by the entry actually occurred, but amounted to a misapplication, then its entry exactly as it oc curred constituted 'a false entry; in other words, that an entry would be false, though it faithfully described an actual occurrence, unless the transaction which it represented involved full and fair value for the bank. The thought thus conveyed implied that the truthful entry of a fraudulent transaction constitutes a false entry within the meaning of the statute. We think it is clear that the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place, and is en tered exactly as it occurred."

tended to confuse the jury and *leave [685 upon their minds an impression that if the transaction represented by the entry actually occurred, but amounted to a misapplication, then its entry, exactly as it occurred, constituted a false entry." It is claimed that under the proof these instructions were wholly irrelevant. Reliance is placed upon a statement in the bill of exceptions "that the evidence showed that all the paper upon which the credit mentioned in said thirty-ninth count was based, was retained in said bank as a part of its assets until the same matured, when it was renewed by other paper of the same kind, and again renewed from time to time as it matured, until said bank failed, at which time said paper, so renewed, was in possession of said bank as a part of its assets and passed as such into the possession of the receiver, by whom it was held as a part of the indebtedness of the cabinet company to said bank, secured by the mortgage executed (to Haughey as trustee for said bank) by said cabinet company to secure the indebtedness of said cabinet company to said bank."

But this is entirely consistent with the claim that the original paper "was simply left with the bank as a mere memorandum, The fact that

and not as a deposit," etc.

other notes were substituted for this paper does not necessarily import that the original transaction was an actual one if the notes were originally given to the bank as a mere pretext to enable the false entry to be made, and the subsequent renewals were equally unreal and made for a like purpose. The receiver was empowered, finding them in the hands of the bank, to retain them as a part of its assets. Prior to the statement in the bill of exceptions, which we have quoted, the following recital appears: "It was claimed on behalf of the government, and evidence was by it introduced tending to show, that the paper was not bona fide paper, representing the value for which the same was credited or any substantial value, and that said paper was not actually discounted by. said bank or actually received as a genuine deposit, but was only received as a memorandum deposit to serve for the time being only, for the purpose of giving the Indianapolis Cabinet Company an apparent credit upon the books of the bank, which in fact *it[686 did not have, and that said entries represented no actual transactions whatever." We think this extract clearly indicates that the charge as given was relevant to the issue.

XII. This heading alleges error in overruling the motion in arrest of judgment. We do not deem it necessary to consider it at length. It is predicated on the assertion that six of the seven counts upon which conviction was had were bad, because it alleged that the bank had been "heretofore" created and organized under the laws of the United States. If we assume that the word should have been "theretofore" in order to make it certain that prior to the finding of the indictment the association had been incorpo

Exclusion of testimony on cross-examination on the ground that the matter had not been opened up by the other side is not prejudicial error, if the matter thus sought to be elicited is not offered by the cross-examining party at any subsequent stage of the trial.

5. The crime of a bank president begun outside of his own state by illegally drawing checks in the name of his bank on another bank, which paid them and debited them to his bank is completed in his own state, so as to be within the jurisdiction of the courts of that state, by his inducing his bank to ratify the debit, if such debit was illegal and not binding upon the bank without ratification.

by the Comptroller. The answer is selfevident. It was wholly immaterial that the principal offender should have had several intents, provided the principal and the aider

of a bank to draw checks in its name when in another city is, in the absence of proof as to a course of business implying the power, a question for the jury.

concurrent imprisonment under each of two counts of the indictment, this court, on affirming as to one and reversing as to the other, remits the case to the court below for further proceedings, instead of ordering a new trial.

inal intent specified in the statute. The alleged additional intent on the part of the principal offender might well have been treated as surplusage; besides it appears from the recital in the bill of exceptions that there was evidence tending to show that the purpose of Haughey in causing the false entry to be made was to deceive any officer who might be sent by the Comptroller of the Currency to make an examination of the bank, and that the paper upon which the entry was made, as stated in the count, was furnished by the defendant Coffin at the request of Haughey with a like intent.

[No. 573,574.]

Submitted January 23, 1896. Affirmed (by Divided Court) February 3, 1896. Petition for rehearing submitted March 2, 1896. Leave granted to file briefs on two questions March 9, 1896. Decided May 4, 1896.

IN ERROR to the Circuit Court of the

TUnited States for the District of New Hamp

shire to review a judgment convicting the de

been pressed upon our consideration, and the result is that we find that they are all without merit.

The judgment is therefore affirmed.

WARREN F. PUTNAM, Plff. in Err.,

2.

UNITED STATES.

(See S. C. Reporter's ed. 687-715.)

Omission of part of a name-refreshing memory of witness-contemporaneous memoranda -exclusion of testimony illegal checks by bank president-ratification-practice.

1. The omission of the words "of Exeter" from

the name of a bank proved as "The National Granite State Bank of Exeter," in an indictment of the president of the bank for defrauding it, is immaterial.

2. Testimony given by a witness more than four

and seventh counts of an indictment for violations of the provisions of U. S. Rev. Stat. § 5209. Affirmed as to one count, and reversed as to the other, and case remanded for further proceedings.

Mr. Frank S. Streeter, for plaintiff in

error:

Variance is any such partial lack of harmony between an essential averment or a nonessential one, in a form precluding its rejection and the evidence, as renders the proof inadequate.

Bishop, New Crim. Proc. 484a 3. Where the name of a third person is introduced in an indictment, as descriptive of some person or thing, the name must be proved as laid.

State v. Copp, 15 Ν. Η. 216; State v. McCoy, 14 N. H. 364; Million v. People, 6 Ill. App. 537; Zellers v. State, 7 Ind. 659; People v. Hughes, 41 Cal. 234; State v. Green, 100 N. C. 547; Hensley v. Com. 1 Bush, 11, 89 Am. Dec. 604; Matthews v. State, 33 Tex. 102; Livingston v. State, 16 Tex. App. 652; People v. Frank, 1 Idaho, 200; Reg. v Dent, 2 Cox, C. C. 334; Reg. v. Carter, 6 Mod. 168.

The existence of the bank is legally essential to the charge.

Anonymous, 3 Salk. 102; Rex v. Morris, 1 Ld. Raym. 337; Turvil v. Ainsworth, 2 Strange, 787; Rex v. Patrick, 1 Leach, C. C. 287; Reg. v. West, 2 Eng. Ry. & Canal Cas. 613; Queen v. Registrar of Joint Stock Co.'s, 10 Q. B. 839.

The name of a corporation must be proved exactly as laid, and the least variance is fatal. Lithgow v. Com. 2 Va. Cas. 297; State v.