5 to deceive or defraud persons named in the statute. This statute therefore requires two intents: the first, the intent to make a false entry with knowledge of its falsity. It does not cover and is not intended to cover honest mistakes. It will be seen, therefore, that if a defendant is in fact ignorant of the falsity of the entry, whether his mistake arose from ignorance of fact or of law, he has committed no offense. Such, a question must always be submitted to the jury, and if it is not, but the court assumes to say that the entry is false, its charge is erroneous. If the entry in the report is thus found to be wilfully false the second question arises: Was it intended to deceive or defraud? but that fact may be inferred from the wilful making of a false entry with knowledge of its falsity. The charge must be the intent to deceive one of the persons named in the statute; an intent to deceive the comptroller of the currency is insufficient. The report must be one of the reports named in the statute; a report made to a bank examiner, which it is not the duty of the officer to make, will not support an indictment. The 35, but the court ignored it or refused to notice it at all. The record shows that the point was made. See United States v. Hughitt, 45 Fed. R. 47. United States v. Booker, 80 Fed. R. 376, wrongly holds that the report need not be a report mentioned in sec. 5211, R. S. Bacon v. United States, 97 Fed. R. 35, so holds also, but the statement is dictum, for it appeared that the report was a report covered by sec. 5211. 3 Graves v. United States, 165 U. S. 323; United States v. Allis, 73 Fed. R. 165; United States v. Allen, 47 Fed. R. 696; United States v. Graves, 53 Fed. R. 634. 4 This is the effect of Graves v. United States, 165 U. S. 323, and United States v. Allis, 73 Fed. R. 165. But United States v. Allen, holds somewhat different language. See 47 Fed. R. 696. 5 Graves v. United States, 165 U.S. 323. 6 United States v. Means, 42 Fed. R. 599; United States v. Allis, 73 Fed. R. 165. The intent must be proven as alleged. United States v. Allen, 47 Fed. R. 696. 7 United States v. Harper, 33 Fed. R. 471. The principle stated in that case applies here. 8 United States v. Bartow, 10 Fed. R. 874. Compare United States v. Allis, 73 Fed. R. 165. 9 United States v. Ege, 49 Fed. R. 852. It must be averred that the report was verified by proper officer. United States v. Potter, 56 Fed. R. 97. See also note 2 to this section for cases contra, which are United States v. Booker, 80 Fed. R. 10 persons named in the statute alone are indictable, not the directors who certify, although they may be indicted as aiding and abetting the act." The form of the report is the regular blank form. It provides for the entry of totals of the various resources of the bank and the various liabilities. Loans and discounts are under one head, overdrafts secured and unsecured under other heads. Under the various heads are provided subdivisions for the loans and discounts upon which officers of the bank are liable, and for overdrafts of officers or upon which they are liable.12 Suspended loans may be entered under the head of loans and discounts.13 Unmatured and contingent liabilities must be shown in the report. But difficult questions arise as between loans and discounts and overdrafts. Cases have arisen where overdrafts so called have been reported among the loans and discounts. This may be caused by the fact that they have been arranged for verbally, or that the customer has given a note to the bank for a certain amount secured by an indorser or sometimes not, wherein the parties promise to pay the overdraft with a rate of interest above the legal rate, with collection charges and attorney's fees. The two cases differ in this: The arrangement in the one case is verbal, in the other is evidenced by a writing; but both make a con 376, and Bacon v. United States, 97 Fed. R. 35. This last case does not notice United States v. Eqe, supra, and United States v. Potter, supra. 10 United States v. Potter, 56 Fed. R. 97. Contra, United States v. Means, 42 Fed. R. 599. But it is held in United States v. Hughitt, 45 Fed. R. 47, that the indictment need not aver that the report was made pursuant to a call, or upon a form prescribed, or at a time called by the comptroller. This case is wrong. See notes 2 and 10 to this section. 11 United States v. Potter, 56 Fed. R. 97. 12 In both United States v. Allis, 73 Fed. R. 165, and United States v. Graves, 53 Fed. R. 634, which are charges to juries, long disquisitions will be found upon these reports and kindred matters. Both charges are very good examples of what a judge ought to avoid in charging the jury. They are full of bold assertion and irrelevant rhetoric that would be pardonable in a "stump speech,” but not in a charge to a jury. 13 United States v. Graves, 53 Fed. R. 634. 14 Cochran v. United States, 157 U. S. 286. tract differing from an overdraft pure and simple, which does not draw interest unless a course of dealing or custom makes it draw interest. Now it seems plain that if the officer making the report honestly thought that the overdrafts had become loans he was guilty of no offense, because it was an honest mistake.15 In the first case it has been held that the overdraft remained as a matter of law an overdraft, despite the verbal arrangement.16 But in the second case the transaction is certainly a loan, although it is not a discount. It is a contrivance of the borrower to avoid paying interest on any more money than he has use for. The contract of the parties is determined by the note, and the overdraft is simply evidence of the amount due on the note. The indorser, if there be one, could only be held by virtue of the writing. But such transactions would appear on the books simply as overdrafts. The demand notes could not be entered among the bills receivable of the bank, because the amount due would vary from day to day. no difference, because the report ought to facts; it may agree with the books or not." not to be evidence against the officer as admissions, unless he kept the books or directed the form of entries in the books,18 although they would be evidence if proved to be entries in due course of business with the suppletory oath of the person who made the entries that they were correct. 15 This is the effect of Graves v. United States, 165 U. S. 323, and United States v. Allis, 73 Fed. R. 165. See § 150, infra. 16 United States v. Allis, 73 Fed. R. 165. But Graves v. United States, 165 U. S. 323, while not plain upon this point, seems to decide the contrary. Now the circuit court of appeals, in a very poorly considered and reasoned opinion, has practically refused to follow Graves v. United States, supra. See the opinion of Bacon v. United States, 97 Fed. R. 35. Yet this makes show the actual The books ought 17 United States v. Allen, 47 Fed. R. 696; Commonwealth v. Dunham, Thach. Cr. Cas. 519. But Bacon v. United States, 97 Fed. R. 35, holds that the books are admissible without the suppletory oath, as against any officer of the bank, and are presumably correct, and seemingly holds that the books control the facts. 18 He may be indicted for an entry made by his direction. United States v. Youtsey, 91 Fed. R. 864. Bacon v. United States, 97 Fed. R. 35, does not agree with the text. Therefore the conclusion seems plain, in spite of a decision to the contrary, that overdrafts so called, which are evidenced by demand notes, are properly returnable as loans and discounts,19 but if so returned out of caution they should be accompanied by an explanation stating the facts. The jurisdiction of this offense is in the United States courts,20 but the same act may constitute a crime against the state authority. Certain matters as to the evidence have arisen in the cases which are cited in the note.22. False entries are But 19 United States v. Allis, 73 Fed. R. 165, seems to so hold when carefully examined. Potter v. United States, 155 U. S. 438, recognizes this defense as to certifying a check, where there were no funds. It is said to be the uniform course of national bankers to call such overdrafts loans and discounts. now Bacon v. United States, 97 Fed. R. 35 (C. C. A.), holds that such loans must be returned as overdrafts. The court, in its opinion, makes the test of overdraft to be the state of the depositor's account. But it misses the real point, which is, that if the depositor has been given a credit up to the amount of the overdraft note, he has the right to compel the bank to pay his checks up to the amount of his credit. It is a misnomer to call such a loan an overdraft, because it is of the essence of an overdraft that it is an authority revocable at any time. Conceding that the authority given is the right to overdraw the apparent balance shown by the books, it is nevertheless binding upon the bank, if the directors permit or authorize an officer to permit it. The consideration making it binding is the making and delivery of the demand note. Hence, if the bank should dishonor the depositor's check, he could sue the bank for damages, and, therefore, such a credit cannot be an overdraft, and Bacon v. United States is a total misconception. Yet because a bank president had returned such loans as loans and not as overdrafts, he was sentenced to the penitentiary for seven years. The ferocity of the sentence staggered the upper court. Since this note was first written, the present and the last comptrollers have recommended the defendant's pardon. In his report upon the case the present comptroller says the return was properly made. The attorney-general stated that he could not understand how any reasonable human being could find that the defendant had been guilty of any offense. The defendant (plaintiff in error) was therefore pardoned in order to remedy this frightful miscarriage of justice, wholly caused by an inexcusable blunder as to the law. 20 In re Eno, 54 Fed. R. 669. 21 Hoke v. People, 122 Ill. 511. 22 Allis v. United States, 155 U. S. 117; United States v. Allen, 47 Fed. R. 696; United States v. Graves, 53 Fed. R. 634; United States v. practically the same kind of offenses as false returns, as the cases cited to this section show. § 93. Embezzlement and misapplication of funds.-The statute directed against the embezzlement, abstraction or wilful misapplication of the funds of a national bank by its officers creates three distinct offenses, which cannot be mingled in one count charging more than one separate and distinct offense. The jurisdiction of these offenses is in the circuit court of the United States. But persons not officers of the bank are indictable as aiders and abettors. The of fense of abstracting the funds may be begun in one jurisdiction and completed in another so that the offender becomes indictable in the latter jurisdiction. These offenses require an intent to defraud, but the intent may be inferred from a wilful doing of an illegal act, and is also to be inferred from an act of embezzlement, the indictment for which, if good as an indictment for embezzlement, would be held sufficient. The offense of abstraction of the funds may be laid without using the technical words necessary to charge larceny, but if the words of the statute are used the manner of abstraction ought to be alleged.10 This offense is so close to that of misapplication of the funds that it is difficult always to separate them. Whatever qualifying or excepting clauses there are in the statute as to either this offense or that of misap Harper, 33 Fed. R. 471. As to indictment, see United States v. French, 57 Fed. R. 382. 5 Putnam v. United States, 162 U. S. 687. 6 United States v. Voorhees, 9 Fed. 1 United States v. Lee, 12 Fed. R. R. 143; United States v. Britton, 108 |