CASES ON REHEARING. CASES IN WHICH REHEARINGS HAVE BEEN GRANTED OR DENIED. Bunker Hill & Sullivan Mining & Concentrating Co......... .156 Fed. 446 St. Louis Street Flushing Mach. Co. v. American Street Flushing Mach. Co... Rehearing denied February 15, 1908. Shine v. Fox Bros. Mfg. Co........ Rehearing denied February 15, 1908. 157 F. (xxxv)† .156 Fed. 574 .........156 Fed. 357 : CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS. MAY v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. November 4, 1907.) No. 1,337. 1. WITNESSES-IMPEACHMENT-MATERIALITY OF EVIDENCE TO SHOW BIAS ов PREJUDICE. A remark made by a witness in a criminal case out of court held to have no tendency to show bias or prejudice and properly excluded as immaterial, when offered to be shown for that purpose. [Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1202.] 2. CRIMINAL LAW-EVIDENCE-DECLARATIONS BY ACCUSED. Defendant was charged with having made a false entry in a report made to the comptroller of the currency as president of a national bank, in that he omitted from the statement of deposits for which the bank was llable the amount of a deposit made several years before and which had not been withdrawn. The defense was that the depositor had authorized defendant to loan the money which had been done, but the depositor de nied such agreement. It was shown by the evidence that defendant, in fact, made loans which were charged to the depositor's account, and for which he took notes payable to the depositor. Held. that a statement made by him to a borrower at the time of making such a loan, which was several years before the making of the alleged false report, to the effect that it was made from money left by the depositor to be loaned, was not admissible as a part of the res gestæ, but was properly excluded as a self-serving declaration. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $$ 805, 808, 810.] 3. SAME-INSTRUCTIONS-ASSUMPTION OF FACT. An assumption of a fact in the charge to the jury in a criminal case held warranted, where such fact was admitted by defendant as a witness. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $1985.] 4. BANKS AND BANKING-NATIONAL BANKS-CRIMINAL PROSECUTION OF OF FICER. Instructions given on the trial of a defendant charged under Rev. St. $5209 [U. S. Comp. St. 1901, p. 3497], with having as president of a national bank made a false entry in a report to the Comptroller with intent to defraud, considered, and heid not erroneous as applied to the evidence. Ross, Circuit Judge, dissenting. 157 F.-1 In Error to the District Court of the United States for the Eastern Division of the District of Washington. The plaintiff in error, who was the president and managing officer of the Big Bend National Bank of Davenport, Wash., was convicted of violation of certain of the provisions of section 5209 of the Revised Statutes [U. S. Comp. St. 1901, p. 3497] under the fourth, fifth, sixth, and seventh counts of the indictment. The offenses charged against him in those counts consisted of an alleged false entry in a report required by section 5211 of the Revised Statutes [U. S. Comp. St. 1901, p. 3498] to be made to the Comptroller of the Currency, in that he therein reported to the said Comptroller that on September 9, 1903, there was due by and from the said national bank on account of individual deposits subject to check the sum of $313,131.21, when said entry in said report should have shown the sum to be $329,291.27, and that the discrepancy was due to the fact that he did not include in his said report the sum of $16,160.06 for which the indictment alleged the said banking association was on September 9, 1903, liable upon individual deposit, subject to check to one W. H. Fleet as a depositor in said bank, and that the plaintiff in error inserted such entry in said report with intent to deceive any agent who might thereafter be appointed by the Comptroller of the Currency to examine the affairs of such association, as alleged in the fourth count, and with intent to deceive the directors of said association, as alleged in the fifth count, and with intent to injure and defraud the said W. H. Fleet, as alleged in the sixth count, and with intent to injure and defraud said association and certain persons to the grand jurors unknown, as alleged in the seventh count. It was shown in the testimony, among other things, that in May, 1896, W. H. Fleet had on deposit in the said bank about $11,000. Being then about to leave the country, he went to the plaintiff in error, who was at that time the cashier and manager of the bank, and had a conversation concerning the use of his money then on deposit. He testified that he entered into a definite arrangement with the plaintiff in error whereby he was to leave his money in the bank, and the bank was to allow him 6 per cent. per annum interest thereon. The plaintiff in error testified that Fleet gave him authority to loan out his money which was then on deposit. He acknowledged that no rate of interest was agreed upon, and that no express authority was given to check out the money, but he stated that a general authority was given him to loan out the money. Fleet then left that part of the country. On May 21, 1896, $1,500 was drawn from Fleet's account by a check signed by the plaintiff in error, and made payable to the Triune Gold Mining Company; the signature thereon purporting to be that of W. H. Fleet. On the same day a check, payable to the plaintiff in error and purporting to be signed by W. H. Fleet, was drawn on said bank for $2,781.50. On July 21, 1896, the plaintiff in error caused $1,980 to be loaned to Redhead & Kipp, and charged that sum to Fleet's account. On September 14, 1896, a check for $6,000 was drawn on said bank, payable to the Triune Gold Mining Company, purporting to be signed by W. H. Fleet. All of said checks were paid by the bank and charged to Fleet's account. On August 5, 1899, Fleet's account was credited with $6,000 as paid by the Triune Gold Mining Company, and on the same day there was drawn from his account by a memorandum check $9,645.60 which was paid to the Triune Gold Mining Company. The plaintiff in error signed the name W. H. Fleet to all the checks above referred to, except the last, which was indorsed, "Charge W. H. Fleet," by the cashier of the bank under the direction of the plaintiff in error. On November 19, 1896, Fleet received from the bank a statement showing a balance due him of $9,499.41 from the bank. At that date the books of the bank showed there was due him but $757.81. On September 27, 1897, he received from the bank a statement which showed a balance due him of $12,237.11. On that date the books of the bank showed there was a balance due him of but $3,455.61. On that statement there was indorsed on the credit side thereof the interest to November 1, 1896, $332.41, and thereafter the interest to July 1, 1897, $384.00, and the balance was carried out of $12,953.77. On April 26, 1899, Fleet received from the bank a statement which showed a balance due him of $14,154.06. On that statement, on the credit side thereof, there was thereafter indorsed the interest to June |