the bank? In my opinion he is. Undoubtedly, it is a common practice for banks to cash checks for well known and well regarded customers, even though the checks are drawn on other banks and the cashing bank does not know whether or not there are sufficient funds to pay the checks when they clear. There is nothing criminal about this. But when, as has happened in the present case, a bank employee permits checks to be cashed, in large quantities and in large denominations, when he knows that the checks are not good as they are presented to his bank, and that the checks are being cashed to obtain money improperly from his bank, then an entirely different situation is presented. In this situation the employee is guilty of a wilful misapplication of bank funds with an intent to injure or defraud the bank.
U.S. v. Mulloney, 1 Cir., 79 F.2d 566, certiorari denied 296 U.S. 658, 56 S. Ct. 383, 80 L. Ed. 468.
In his charge the trial judge frequently used the word 'scheme' in describing the plans of Backer and Opp in their check kiting transactions. Defendant contends that this was error for which a new trial should be granted because there is no charge of conspiracy in the case. This is not error, however, because the word 'scheme' accurately describes what Backer and Opp had in their minds. It is because the defendant permitted the 'scheme' to be carried out in his bank that he is guilty of a misapplication of bank funds with intent to injure or defraud the bank. The defendant is not guilty of a conspiracy to misapply funds. He is guilty of an actual misapplication, because he permitted such an obvious improper misuse of bank funds. Certainly, it was not an error to describe the plan of Backer and Opp as a 'scheme'. The trial judge was careful to warn the jury in his charge that he meant no inference of guilt by the use of the word 'scheme'.
The defendant contends also that error was committed when the trial judge refused to withdraw from the jury's consideration counts relating to more than one check. In several of the counts of the indictment, two checks have been included to show the misapplication on the day of the date of the checks. In each of these cases, the two checks are dated on the same day and they were cashed at the same time. Why there were two checks instead of one check on these days has not been explained, but it is obvious that they were part of one transaction and constituted one misapplication. Under these circumstances, it was not necessary to draw separate counts for each check and no error was committed in refusing to withdraw these counts from the jury's consideration.
The motion for judgment of acquittal is refused and the motion for a new trial is refused.