The opinion of the court was delivered by: SHERIDAN
Defendant, Ralph Louis Zarra, was charged in a one count indictment with aiding and abetting Frederick DeLancey Hesse, head teller of the Hershey National Bank, in the embezzlement of $101,000 from the bank, in violation of 18 U.S.C.A. §§ 656 and 2:
"That from on or about December 1, 1963, to on or about November 1, 1965, at Hershey, Dauphin County, Commonwealth of Pennsylvania, in the Middle District of Pennsylvania and within the jurisdiction of this Court,
did aid, abet, counsel, command, induce or procure Frederick DeLancey Hesse, who, being an officer, that is, Head Teller and Assistant Cashier of the Hershey National Bank, Hershey, Pennsylvania, a National Bank whose deposits are insured by the Federal Deposit Insurance Corporation, wilfully and knowingly and with the intent to injure and defraud the said bank, did embezzle the sum of $101,000.00 of the funds and credits of the bank which had come into his possession and under his care by virtue of his position as such officer.
"In violation of Title 18 United States Code, Sections 656 and 2."
The jury returned a verdict of guilty. Defendant's motions for judgment of acquittal or for a new trial, and in arrest of judgment are before the court.
The Government introduced evidence from which the jury could have found the following facts.
Hesse was assistant cashier and head teller of the Hershey National Bank by whom he had been employed for 33 years. Defendant was secretary of the Fraternal Order of Eagles in Harrisburg. In 1961, defendant, with Hesse's knowledge, opened an account in the bank under the name "Howard Brooks." Shortly after it was opened, it was overdrawn on several occasions, but each time defendant gave money to Hesse to cover the overdrafts. On subsequent occasions, defendant told Hesse he did not have the money and asked him to "Hold them [checks] a couple of days." For a time defendant covered these checks, but later defendant did not, and it was too late under the regulations for Hesse to return the checks to the depository banks. In November 1962, the overdrafts on the Howard Brooks account amounted to $22,000. Hesse became panicky because he had used vault cash to pay the checks. After discussions with defendant, $22,000 was raised to replace the vault cash by obtaining $10,000 from a Mr. Leo, a debtor of defendant, and $12,000 in loans obtained by Hesse's children. Defendant agreed to pay Hesse the $12,000 at $150 a week. He made payments totaling $4,250, but about January 3, 1964, told Hesse he could not continue, that he was in need of an additional $6,000 to buy pinball machines, and asked Hesse to get it from the bank. Hesse said if he did and Mr. Baum, the cashier of the bank, learned about it, he would fire him. Defendant said then he would get a car and run down Mr. Baum. He also told Hesse there would be no payments on his money unless he got the $6,000, whereupon Hesse gave it to him in return for a percentage of income from the machines. Defendant made payments for several weeks until agents of the Pennsylvania Liquor Control Board confiscated the machines. Hesse then gave defendant $7,500 for more machines. Defendant made more demands for money. Hesse gave him $5,000 for a loan to Charles Ench, who was to pay a bonus of $1,000, $3,000 to pay a mortgage on defendant's house, $2,500 to buy a car, $1,300 for TV sets, $5,000 to run a dice game, money for a public license for the Eagles, $9,000 for a F. DeSanto, $4,800 for Dorothy Keim, $3,000 for William Fry, $4,800 for John Ramsey, $6,000 for Max Waxman, $2,400 for Helen Carrichio, and others. Hesse never met these people. Defendant made the requests for the money. Hesse took it from vault cash and gave it to taxi drivers for delivery to defendant. Defendant knew all of this money was embezzled by Hesse from the bank.
Hesse concealed his shortages in this manner. He had an account with a small balance at the Lebanon Valley National Bank, Lebanon, Pennsylvania. At all times he had a check in his teller's cage for the exact amount of the shortages. If, for example, it was $90,000, he wrote a check for this amount and put it in his drawer and counted it as cash to balance each day's accounts. If the bank examiners came in, he dated the check and put it through the machine as a cash check so that it would take the place of cash. After the examiners counted the cash for that day, they released the cash and then he would take the cash out of the bank and have it delivered to the Lebanon bank and deposited in his account. He had time to accomplish this because his check went from the Hershey bank through Philadelphia to the Lebanon bank via the Federal Reserve. This took about three days. The ledger sheets of the Lebanon bank showed that the two largest deposits were $80,000 on October 4, 1965, and $91,200 on October 11, 1965. On at least three occasions defendant deposited the money for Hesse in the Lebanon bank. Hesse gave the money to a taxi driver who drove defendant either to the Lebanon bank to make the deposit, or to other area banks where defendant purchased cashier's checks or money orders with the cash and then deposited these in the Lebanon bank. On November 1, 1965, Hesse was in an automobile accident and suffered injuries which required his hospitalization. On November 4, Hesse told the president of the bank of his shortage, which then was $101,000. While in the hospital Hesse had several conversations with the defendant, and convinced him that the bank was not going to reveal the shortage. Subsequently, defendant sent about $4,000 to Hesse in the hospital to apply on the shortage. On January 19, 1966, defendant executed and delivered to the Hershey bank a note for the balance of $97,000.
The reasons advanced in support of the several motions will be considered together.
Sufficiency of the Indictment: Defendant argues that: the indictment is vague and uncertain and does not inform him of the charges against him; it is insufficient so as to permit defendant to plead the judgment in any other prosecution for the same offense; it fails to "establish" any necessary facts of the offense of Hesse whom defendant aided and abetted; it fails to set forth "factual evidence" of the common involvement of Hesse and defendant; it does not "indicate" the commission of any criminal act against the United States; and it is "factually insufficient" to charge defendant with violating the statutes enumerated.
It is not necessary to cover these arguments in detail. Suffice to say that an indictment is sufficient if it substantially follows language of the statute or uses words of similar import. United States v. Chunn, 4 Cir. 1965, 347 F.2d 717. An indictment charging a statutory offense in language and containing allegations necessarily or fairly importing guilty knowledge need not contain formal words "knowingly," "wilfully," "feloniously" or "unlawfully." United States v. Amorosa, 3 Cir. 1948, 167 F.2d 596; United States v. Barrow, E.D.Pa.1962, 212 F. Supp. 837, rev'd in part on other grounds, 3 Cir. 1966, 363 F.2d 62. The indictment charged defendant with aiding, abetting, counseling, commanding, inducing or procuring Hesse, an officer of the bank, who "wilfully and knowingly and with intent to injure and defraud the bank," embezzled the funds, in violation of 18 U.S.C.A. §§ 656 and 2. This charge of aiding and abetting was sufficient. United States v. Tornabene, 3 Cir. 1955, 222 F.2d 875; United States v. Johnson, 4 Cir. 1964, 337 F.2d 180, 196; United States v. Brown, 2 Cir. 1964, 335 F.2d 170; Logsdon v. United States, 6 Cir. 1958, 253 F.2d 12; United States v. Barrow, supra; United States v. Quinn, E.D.N.Y.1953, 111 F. Supp. 870.
Admissibility of Prior Transactions: Defendant contends the evidence of the Howard Brooks account was inadmissible. This evidence was admissible on several grounds. In his opening to the jury, defense counsel stated that defendant would show that there were innocent "loans" between Hesse and defendant. The evidence showed that the transactions were quite different than "arm's length" loans. These prior transactions, involving as they did embezzlements from the same bank and closely related in time to the offense charged, also constituted similar offenses relevant to show knowledge and intent. 1 Wigmore, Evidence § 217, 2 Id. §§ 300-302; United States v. Weiler, 3 Cir. 1967, 385 F.2d 63, 68; United States v. Johnson, 3 Cir. 1967, 386 F.2d 630; United States v. Laurelli, 3 Cir. 1961, 293 F.2d 830; United States v. Stirone, 3 Cir. 1958, 262 F.2d 571, rev'd on other grounds, 1960, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252; Zamora v. United States, 10 Cir. 1966, 369 F.2d 855; Pardo v. United States, 5 Cir. 1966, 369 F.2d 922, 924; United States v. Byrd, 2 Cir. 1965, 352 F.2d 570. The prior misappropriations of funds by Hesse and defendant were relevant on whether defendant knowingly and intentionally aided and abetted, or counseled and procured Hesse in the misappropriations charged in the indictment. Finally, after Hesse refused to embezzle the $6,000 for the pinball machines, defendant threatened to go to the officials of the bank and tell them about the prior shortage. And, when at first Hesse refused the request for $7,500 for more machines, defendant said: "'How do your children go to school?' I [Hesse] said, 'They walk.' He said, 'Well, you have to give me this money or I will have to take care of your children' - which I [Hesse] took as a threat to the children at that time." The jury was instructed on the limited purposes for which the evidence was admitted.
Sufficiency of Evidence and Instructions-Testimony of Accomplice: Defendant argues that the testimony of Hesse was not sufficient to sustain a conviction and complains of the court's failure to instruct the jury on several "rules" relating to the testimony of an accomplice. Defendant requested that the jury be charged:
"6. The Government's witness, Mr. Fred Hesse, has pleaded guilty to a charge of embezzlement; and his testimony in light of the alleged conspiracy must be scrutinized and examined very carefully. When considering the credibility, that is the believability, of the Government's witness, Mr. Fred Hesse, the testimony of a conspirator and accomplice, it should be corroborated by other testimony before giving too much credence to such testimony."
The court questioned this because it appeared to be a request to instruct the jury to disregard the testimony of an accomplice if it was not corroborated.
Defense counsel, however, was permitted ...