Full opinion text
KENYON, Circuit Judge. Appellants '(herein designated as defendants) were at the time of the matters herein involved, officers of the Kansas City Joint Stock Land Bank (herein called the land bank), which was duly organized under the Federal Farm Loan Act, section 811, chapter 7, title 12, USCA, with a capital stock of $250,000. The bank passed into the hands of a receiver in 1927. Defendant Cravens was president of the bank, and defendant Alice B. Todd, secretary. Defendants, both charged as principals, were eonvieted upon 88 counts of an indictment charging misapplication of funds and false entries on the books of the land bank with intent to defraud and deceive. All the transactions upon which the indictment is based occurred before the receivership and while defendants were in complete charge and control of the bank. The statute claimed to be violated is section 31, chapter 245, 39 Stat. 382 (section 984, title 12, USCA), which is as follows: ' "§ 984. Any person connected in any capacity with any national farm loan association, Federal land bank, or joint stock land bank, who embezzles, abstracts, or willfully misapplies any moneys, funds, or credits thereof, or who without authority from the directors draws any order, assigns any note, bond, draft, mortgage, judgment, or decree thereof, or who makes any false entry in any book, report, or statement of such association or land bank with intent in either case to defraud such institution or any other company, body politic or corporate, or any individual person, or to deceive any officer of a national farm loan association or land bank or any agent appointed to examine into the affairs of any sueh association or bank, and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be punished by a fine of not exceeding $5,000 or by imprisonment not exceeding five years, or both.” Defendant Cravens was upon the first 44 counts sentenced to five years in the penitentiary, the sentence upon each to be served concurrently. In addition, upon each of the first 15 counts he was fined $1,000. Upon counts 45 to 88 inclusive he was sentenced upon each to one year in the penitentiary, these sentences to be served concurrently, but consecutive to the sentences on counts 1 to 44, and on each of counts 79 to 88 inclusive he was fined $1,000. The total sentence therefore being six years in the penitentiary and a fine of $25,000. Defendant Alice B. Todd was sentenced tc. one year and a day on each of the counts, said sentences to be served concurrently. * There were a number of corporations controlled by defendants having to do with the general situation in which one or both defendants were .interested. They are as follows: (a) The Liberty Joint Stock Land Bank of Salina, Kan., organized in January, 1918, and later, to wit, 1925, consolidated with the Kansas City Land Bank. It will be designated herein as Liberty Bank. Cravens was its president. (b) The Cravens Mortgage Company, originally a partnership lending money on farm mortgages, comprised of Cravens and his father. It was later incorporated. It turned over its business to the Liberty Bank when it was organized, taking stock for its holdings. (e) The Kansas City Finance Corporation (herein called the finance company) was incorporated in 1922, as an investment and loan company, dealing in bonds, stock, etc., with a capital of $750,000. It was organized by Mr. Cravens to carry on the same work as the Cravens Mortgage Company had been carrying on “of acting as the producing agent for the land bank.” One-half of the capital stock was paid by delivery of 7,500 shares of the stock of the Liberty Bank at $50 per share, making the assets of the finance company presumably $375,000. This stock of the finance company was owned as follows: V. R. Andrus, , 1 share, S. C. Miller, 1 share, Alice B. Todd, 7,489 shares. These parties constituted the board of directors. (d) The Missouri Hydro-Electric Power Company (herein called the Hydro-Electric Company), incorporated in 1924, for the purpose of maintaining and operating electric power and light plants. The capital stock was to be 500 shares of no par value, owned as follows: Walter Cravens, 498 shares, R. W. Street, 1 share, Walter Eyssell, 1 share. (e) Farmers Fund, Inc., organized in April, 1925, to deal in bonds, mortgages, and securities of all kinds, and to act generally as investment brokers. The capital stock was to be $100,000,1,000 shares without nominal or par value, which the articles of incorporation recited had been bona fide subscribed. The capital stock was paid by cash in the amount of $8,984.09, and by the transfer to the company of mortgages upon real estate aggregating $91,015.91. From whence the mortgages came does not appear in the record. The shareholders and the number of shares owned were as follows: Walter Cravens, 998 shares, Alice B. Todd, 1 share, R. W. Street, 1 share. These parties constituted the board of directors. Joint-stock land banks, authorized under section 811, title' 12, USCA, are for the purpose of assisting farmers in securing long time loans at low rates of interest, the same to be repaid by amortized payments. Under the act bonds can be issued in an amount not exceeding fifteen times the capital stock and surplus, which are placed on the market and the money derived from these sales is used to make loans. The government incurs no responsibility as to these bonds, their payment being determined by the success with which the loans are made and interest collected. They are not commercial banks but áre subject to certain restrictions in examinations similar to federal banks. It does not seem to be disputed that defendants took from the bank large sums of money. In fact it is admitted in the argument. The government claims said sums were wrongfully and unlawfully taken with intent to defraud the bank, and that false entries were made on the books with the same intention. Defendants’ theory is that the difficulties arising were due largely to the land deflation in Missouri and Kansas where the land bank had its loans, which commenced about 1920 and resulted in default in payment of interest and amortized assets on many mortgages and required the land bank to take over a large number of farms; that to meet this situation Cravens devised the plan of organizing the Hydro-Electric Company to develop hydro-electric power for use in St. Louis and Kansas City and other sections of the country which would require an eventual expenditure of some thirty million dollars. The project made necessary the acquisition of lands along the Osage river in the state of Missouri, which would be overflowed by the construction of a dam known as the Bagnell Dam. The lands which the land bank had taken over in Missouri and Kansas were to be exchanged for lands within the area which would be submerged by the dam, which lands the Hydro-Electric Company would be compelled to pay for in cash; that this was the purpose of organizing the Hydro-Electric Company; that a eon-tract was entered into between the HydroElectric Company and the bank called the trading agreement, providing for said exchange of lands, which will be hereinafter referred to; that the moneys taken, as set forth in the first 33 counts of the indictment by defendants from the bank were used in carrying out this project in a good faith effort to benefit and not injure the bank. It is the contention of defendants that were it not for unwarranted governmental interference they would have worked out this situation to the benefit and possible salvation of the bank. Further, they contend that the original taking was entirely justified and that whatever funds they took were later restored. We discuss, preliminary to the question of whether the evidence was sufficient to submit to the jury the various counts of the indictment, some questions of importance. First. Were the constitutional rights of the defendants invaded by an unlawful search and seizure of property of the bank? This question was raised by plea in abatement. Second. Was there error in empaneling the jury? Third. Was there error in the cross-examination of defendant Alice B. Todd? Unlawful Search and Seizure. The indictment was returned on August 4, 1927. The plea in abatement was filed November 7, 1927. An amended plea in abatement was filed in April, 1928. The government contends these pleas came too late, neither the plea .nor the amended plea stating any reason for delay. We realize that such an argument can be based on Agnew v. United States, 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624, but serious constitutional rights being here involved we prefer to pass on the merits of the question raised. Three sets of circumstances are involved in the alleged- unlawful' search and seizure. First, that, following an invasion of the banking rooms of the Kansas City bank in December, 1925, by agents of the government holding commissions as land bank examiners and accompanied by- secret service men, certain books, papers, and records -of the bank disappeared, later reappeared in the files of the Treasury Department in Washington, and finally were sent back to the office of the ' United States District Attorney in Kansas City for the purpose of being used in procuring an indictment, against these defend-' ants. Second, that on the night of April 24,' 1927, a room on. the. second floor of the build- : ing in which the land bank had its offices was entered by land bank examiners accompanied by secret service operatives and agents of the Department of Justice, and books, papers, and records, including some private papers of defendant Cravens, seized. These records and documents were removed the following day, after the issuance of a subpoena duces tecum. Third, that throughout the months following December, 1925, the books, papers, and records still remaining in the land bank were being examined and milled over by agents of the Department of Justice, acting primarily with the purpose in view of bringing an indictment against these defendants. The Federal Farm Loan Board has complete authority under the statutes to bestow commissions as land bank examiners upon whomsoever it will, title 12 USCA § 951, and the powers of such examiners are not diminished by the fact of their being accompanied in their operations by representatives of another department of the government. So long as they act within their own powers, evidence secured by them may be diverted to officers of the Department of Justice, cf. United States v. Cooper (D. C. N. D. Iowa) 288 F. 604-611, reversed on other grounds 9 F.(2d) 216 (C. C. A. 8). It is provided by statute that “the Secretary of the Treasury is hereby authorized to direct and use the Secret Service Division of the Treasury Department to detect, arrest, and deliver into custody of the United States marshal having jurisdiction, any person or persons violating any of the provisions of this section.” Title 12 USCA § 986. One of the very purposes of periodic bank examinations is to detect illegality, and such examinations are not made illegal by the mere presence of agents of the Department of Justice commissioned as land bank examiners and secret service operatives charged along, with bank examiners with the duty to enforce the banking laws. , Joint-stock land banks as such are subject to the widest of inquisitorial powers, provided by the very act by which the banks themselves are created. Title 12 USCA § 952; title 12 USCA §§ 481, 484. This does not of course mean that bank examinations are beyond the pale of the Fourth Amendment, but it does mean that a bank which is really a “public institution,” of. Cooley v. Bergin (D. C. Mass.) 27 F.(2d) 930, 931, 933, owes a positive duty to co-operate in its own examination. It is ’ seldom that a complaint of á violation of the Fourth Amendment arising out of such examination arises. In Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, 306, 44 S. Ct. 336, 337, 68 L. Ed. 696, 32 A. L. R. 786, Mr. Justice Holmes conceded, with regard to a limitation the Supreme Court bad imposed on the inquisitorial powers of the Federal Trade Commission over ordinary private corporations, that “the question is a different one where the State granting the charter gives its Commission power to inspect.” We have been able to discover but one ease of a prosecution under the national banking laws where the question of unlawful search and seizure was so much as raised, and in that case, Bacon v. United States (C. C. A. 8) 97 F. 35, the search and seizure complained of had occurred while the bank in question was a state institution. We entertain considerable doubt as to whether there was any real illegality in any of the circumstances complained of in the instant ease, so far as the books, papers, or records of the land bank are concerned. Certainly there was no taint of illegality about the third set of circumstances complained of, viz., the examining of records which was carried on at the bank itself. Conceding however some “irregularity” to the sending of the bank’s books, papers, and records to the Treasury Department in Washington, and to the seizure.made on the night of April 24, 1927, there are reasons why defendants are thereby afforded no ground of reversal. Defendants of course could raise the question of illegal search with reference to their own private papers (referred to later), but whether they could raise it with respect to the papers and records of the bank is not so clear. The rule is well settled that the only ones who can object to the use of evidence illegally procured are those whose property rights therein have been invaded. Cooper et al. v. United States (C. C. A. 8) 9 F.(2d) 216; Fuller v. United States (C. C. A. 2) 31 F.(2d) 747; Wida et al. v. United States (C. C. A. 8) 52 F.(2d) 424; United States v. Hoyt (D. C. S. D. N. Y.) 53 F.(2d) 881; Occinto v. United States (C. C. A. 8) 54 F.(2d) 351; Kelley v. United States (C. C. A. 8) 61 F.(2d) 843 (opinion filed October 31, 1932); Hale v. Henkel, 201 U. S. 43, 26 S. Ct. 370, 50 L. Ed. 652; Wilson v. United States, 221 U. S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558; Wheeler v. United States, 226 U. S. 478, 33 S. Ct. 158, 57 L. Ed. 309; Grant v. United States, 227 U. S. 74, 33 S. Ct. 190; 57 L. Ed. 423; Essgee Co. of China v. United States, 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917. Under the authority of Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426, there may be doubt as to whether the bank records and papers could be used against defendants, they being apparently in the control and possession of the bank and its records as managing officers thereof. That case however does not overrule the doctrine of Wilson v. United States, 221 U. S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558, as applicable to situations under the Fourth Amendment. It is unnecessary however to determine this question, in view of this record. Assuming that it can be raised by defendants, it appears from the only evidence introduced upon the question that none of the books, papers, or records, as to the seizure of which illegality is charged, was made use of in any way in the procuring of the indictment against these defendants. The only testimony dealing with what records were used, or were not used, in the procuring of the indictment, is that of Mr. Nu-gent Dodds, Special Assistant to the Attorney General, who had charge of the preparation of the case and was instrumental in the prosecution- of defendants, and Mr. S. C. Bennetts, aecouptant of the Department of Justice who assisted Mr. Dodds. It seems necessary to set out considerable of Mr. Dodds’ evidence. In answer to the question of what records were used before the grand jury he replied: “The books and reeo'rds of The Kansas City Joint Stock Land Bank, the general ledgers, check registers, disbursement journals, and such general books of account of the Land Bank were used before the grand jury and were the basis of this indictment.” He testified also that “the records we took before the grand jury were the books and records of The Kansas City Joint Stock Land Bank, namely the ledgers of the bank, general ledger, each of the papers mentioned in the individual counts in the counts of the indictment, such as checks, and one thing and another, that were taken from the files of the Land Bank the day that the grand jury—or a few days before, I believe—they- were never over here that I know anything about; certain cancelled cheeks; the cheek register of the Land Bank; the individual mortgage records; record books; various of them, of the Land Bank receipts and disbursement journals, all being books in possession of the receiver of the Land Bank when he took the bank over.” When asked when he came into possession of the records that were used before the grand jury he replied: “I went to the Land Bank and examined them. They were there at all times until the grand jury was called. ■e < -•<- rji^ reeorc[s we use(j for grand jury were records taken by subpoena from the receiver of the bank, I believe, arid had always remained in the bank. The ledgers and check registers and such books as that.” With reference to records that were not used, the following colloquy occurred between Mr. Dodds and the examining counsel, Mr. Conrad: “Q. Did you use any other records, to your knowledge? A. No, sir, I don’t believe any other records were used, except records of the Land Bank. “Q. No Missouri Hydro-Eleetrie records were used? A. No, I don’t believe the Missouri Hydro-Eleetrie records were used; but I would want to consult with some of my assistants before I could be sure. “Q. You have read the plea in abatement? A. Yes. “Q. Was the records of any of the corporate entities mentioned in the plea in abatement used before the grand jury? A. No, sir, I don’t believe that they were. “The Court: None of the records re- ferred to in the plea in abatement you say were used? A. They have here an exhibit attached to the plea in abatement in which they named a great many records. I have looked that over and I can’t remember that any reeord, document or paper was used before the grand jury, and I am satisfied it wasn’t.” Mr. Dodds added: “May I make myself clear on this, that as to these papers that I saw here none of them were ever introduced before the grand jury nor did I ever use any of them myself in getting the data for these cases. They are disconnected and I have no memory of there ever being any connection between them and the indictment in question whatsoever. I am satisfied there wasn’t.” At the conclusion of-all the testimony directed to the question of unlawful search and seizure, Mr. Dodds again took the stand and made the following statement: “When I testified this morning, if the court please—since I testified this morning, I have looked over and tried to refresh my recollection as to the use of divers of the documents that are mentioned in the plea in abatement, in the amended plea in abatement. I would say this to the court: The accountants here, in the matters upon which the August 4th indictment is based, had been working under my immediate direction and guidanee in order to develop the matters that are contained in that indictment, both before the indictment was brought and afterwards. I do not believe and I am as morally certain as anyone could be, Your Honor, that nothing whatsoever among the papers that are listed in the amended plea in abatement had anything to do with the development of the matters that are contained in the August 4th indictment. The investigation that brought out the facts that are covered by the August 4th indictment was the investigation of the books, records and documents of the Land Bank that were in the Land Bank. * * * “None of the books, records or documents that were taken from the room on the second floor wore actually used before the grand jury and I don’t believe that there was anything in any of those books, records or documents on the second floor that had any bearing upon or furnished any clews or leads to the matters that are contained in the indictment. The matters that are contained in the indictment were covered by documentary evidence taken from the bank itself under subpoena and in each instance made, as I remember it, a prima facie case as to the count as to which each of the documents referred. “There was no count—I kept track of it through the ease and through the presentation to the grand jury—I followed the schedule in the first place and kept track of it in the second place, as the proof went in and there was no essential element of proof that was missing and, may it please the court, entirely independent of documents seized from the second floor and the documents that came here from Washington and, as I have stated before, I know of no lead or clews of any kind that developed from either of those sets of documents. The examiners who examined the Land Bank were, in so far as I know, always authorized by the Federal Farm Loan Bank, as Mr. Sheehan and Mr. Madland a,nd the last witnesses and all the previous witnesses spoken of were and their commissions were put in evidence this morning.” With respect to any private papers of defendant Cravens that may have been taken, Mr. Dodds testified as follows: “The day those records were taken, Mr. Brewster called me up and told me they had included some unlabeled boxes, two unlabeled boxes that contained personal letters of Mr. Cravens and Mr. Brewster asked me whether I would be willing to return those letters if he should convince me they wore Mr. Cravens’ property. I told him I would gladly do it. The government had no interest in Mr. Cravens-’ private affairs. Mr. Brewster came to the Federal Building and opened two boxes in my presence and held up a couple of papers and showed me they were personal papers of Mr. Cravens and I don’t know whether we made-any further examination than that but, anyway, he assured me they were Mr. Cravens’ personal papers and we closed and locked the boxes and we gave them to Mr. Brewster and he took them away. Outside of that I have never seen a letter or personal paper that belonged to him that was his personal papers.” When Mr. S. C. Bennetts, accountant of the Department of Justice who assisted Mr. Dodds in preparing the indictment, took the stand, the following colloquy occurred between him and Mr. Dodds as examining counsel: “Q. And I will ask you whether when that matter was presented to the grand jury on August 4th, to your knowledge, whether any books, records and paper we got that night were used at all? A. So far as the documents, books, records and papers that I personally testified about to the grand jury, not a single one. “Q.' In the preparation of our ease in the August 4th indictment, I will ask you whether we had any occasion to use those papers and hooks and records that were procured by that subpoena, that were found there that night in the bank room? A. No, sir. “Q. They didn’t have anything to do with our August 4th case? A. No. . - “Q. And whether or not on August 4th, ■anything was worked up entirely from the ibooks, records .and documents of the bank ;which you examined there assisted by Mr. Tull? A. Every count in the indictment is •on that basis. “Q. And the books, records and documents—you attempted to bring them over for the grand jury? A. I think Mr. Miller and I brought them, if I remember right. ' - <i:Q. You and I agreed in advance what, we were going to use before the grand jury? A. I didn’t get' that. “Q. We prepared the case together? A. Yes. “Q. Do you know of having gotten any clews or leads from.that evidence that was subpoenaed at that time- that had anything to do with the August 4th case? A. No, I do not. “Q; Do you know of having gotten, or did you get any.evidence or leads or clews from the papers that came to you from the Treas: ury Department upon which any accounts of the August 4th case were based? A. Not from the Treasury Department. “Q. So that neither of the bunches of documents that counsel has mentioned here today were the basis of our August 4th indictment or of the former indictment for that matter, were they? A. No.” £.5, 6] In the light of the above testimony we are unable to disturb the finding by the District Court that is implied in its overruling of the defendants’ plea in abatement to the indictment, viz., that none of the books, papers, or records concerning the seizure of which there was the least taint of illegality was used in any way in the procuring of the indictment against the defendants. Furthermore, in the light of former rulings by this court, it would not have been material had such books, papers, or records been so used, so long as there was competent additional evidence, legally procured, and without taint, on which to base the indictment. In United States v. Cooper (D. C. N. D. Iowa) 288 F. 604, internal revenue agents in the course of an investigation had come upon evidence of criminal conduct and had turned sueh evidence over to officers of the Department of Justice, who proceeded to have an iñdietment brought against the defendants. The evidence so seized, and all of which was used in procuring the indictment, consisted in part of corporate records, which the court held to have been lawfully seized, and in part of the private books, papers, and records of the several defendants, which the court held to have been unlawfully seized, in violation of the Fourth Amendment. The court nevertheless overruled the plea in abatement to the indictment, saying, at page 611 of 288 F.: “In view of the conclusions reached the demurrers to the pleas in abatement must necessarily be sustained as the pleas concede that a very substantial part of the evidence used before the grand jury was made up of evidence other than the private books,, papers and documents of the defendants.” In support of the above ruling' the court cited, among other authorities, the case of Anderson v. United States (C. C. A. 8) 273 F. 20, 29, where it was claimed illegal evidence was used before the grand jury. The court said: “There may have been other sufficient and competent evidence supporting the action of the grand jury in finding the indictment. It therefore becomes, as we think, unnecessary to decide the question as to whether the seized papers could appropriately be used at the inquest. We understand the rule to be that an indictment cannot be set aside or avoided on such an objection unless it .affirmatively appear that there was no evidence of the commission of the offenses presented to the grand jury, or unless all of the evidence which it heard on the inquiry was unlawfully procured in violation of some fundamental right of the party indicted, and which would be barred on the trial as incompetent and inadmissible against him.” While United States v. Cooper, supra, was reversed by this court in Cooper v. United States (C. C. A. 8) 9 F.(2d) 216, the reversal went only to the sufficiency of the evidence to sustain the conviction and not to the District Court’s ruling with regard to the plea in abatement to the indictment. Such ruling in the latter regard was in fact expressly sustained in the following language of this court at page 220 of 9 F.(2d): “At the threshold it is claimed that the indictment should have been quashed because of the alleged submission to the grand jury of certain private books and papers of the defendants unlawfully seized, in violation of the Fourth Amendment, and that at the trial such evidence, and information elicited from clues derived therefrom, were introduced, contrary to the provisions of the Fifth Amendment. To this contention it may be answered that there was no such search and seizure as is contemplated by the constitutional prohibition. Government officers, under the applicable revenue law, demanded access to the books and papers of the corporation, in order to verify or discredit the returns it had made, and neither force, threats, nor other objectionable methods were employed. The corporation, without objection, answered and complied with the demand for inspection and examination and aided and participated therein. It was compelled by law to make the disclosures that were made, and could not, of course, make this objection in any ease; nor can plaintiffs in error, as officers of that corporation, plead it in their own behalf. Information thus gleaned may always be used in the prosecution of individuals responsible for the violation. Besides, there was before the grand jury other substantial evidence conceded to be competent and free from taint. Therefore, under general authority, the indictment is not vulnerable on this ground.” See, also, Radford v. United States (C. C. A.) 129 F. 49; McGregor v. United States (C. C. A.) 134 F. 187; McKinney v. United States (C. C. A.) 199 F. 25; Chadwick v. United States (C. C. A.) 141 F. 225; Holt v. United States, 218 U. S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138. It is urged in argument that some of those alleged to have been engaged in the claimed illegal search were armed, and that the janitress of the building was coerced to open the doors of the room connected with a part of the bank. 'We find no evidence of any coercion of the janitress. Miss Todd did testify that some of the men were armed but did not claim any coercion. Just who was armed is not very clear in the record, but there was no attempt to coerce any one by force or threats. No question seems to be made in the instant case with any seriousness at least, of the use of illegally procured evidence at the trial. We have found nothing in the record to indicate that any of the documents sent to Washington or seized on the night of April 24, 1927, were among the documents introduced in evidence at the trial. There being in our judgment ample legal evidence on which to base the indictment procured against the defendants, it is unnecessary to determine the actual validity of the seizure of evidence which not only was not needed, but was actually not used in the securing of the indictment. The burden was on defendants to show that the indictment was based on illegal evidence. That has not been shown. We conclude herein, as we did in Cooper v. United States, supra, that there is no reason for us to disturb .the judgment on the ground of the alleged unlawful seizure of evidence preliminary to the indictment. Empaneling of Jury. Was there error in this? On the day the case was called for trial, but before it was actually called, it appeared there would not be a sufficient number of jurors present to constitute the panel of twenty-eight rendered necessary by the provision for peremptory challenges. Judicial Code, § 287, 28 USC A § 424. To take care of this situation the court directed the marshal to summon ten additional jurors from among the bystanders in the courthouse or in the immediate vicinity of the courthouse. When the case was called for trial the court directed the clerk to call a jury of twenty-eight men, calling from the regular jury panel until that should be exhausted. The clerk did so and twenty-three jurors responded to the call. The court then directed the marshal, in accordance with section 280 of the Judicial Code, 28 USC A § 417, “to summon from among the bystanders in the court room five additional jurors.” Thereafter six members of the panel were challenged and excused for cause, and six additional bystanders were called from the courtroom to take their places. All this was done over the defendants’ objection, which was to the fact that the so-called “bystanders” had been provided in advance of the case being called for trial by the first order of the court to the marshal. Eight members of the jury that tried defendants were from the so-called “bystanders” or talesmen, while four were from the regular panel of twenty-three. It later appeared that the persons summoned to act as bystanders pursuant to the order of the eourt were selected in part from lists of prospective or soliciting jurors kept by the marshal and his deputies, and in part by the marshal from various business houses about the city. In selecting men from the various business houses the marshal testified that his practice was as follows: “I went in the place of business and went to the manager and told him I was going to' take a man out of there for a juror, and I would let him pick the man if he wanted to, but I told him I wanted a man that looked to me like he would make, a good juror, and if the man he picked didn’t suit me, I would pick another.” In one instance he “went to the assistant manager and told him I wanted to take a man for jury service, that he could designate the man that would disorganize the firm the least, and if he looked good I would take him, and if ’he didn’t I would take another one, and the man he> picked I didn’t like so I picked another one.” It is not claimed the procedure resulted in any prejudice to defendants but it is claimed that the jury selected in this way was not a -legal one.. ‘ , ■ , We are unable to find reversible error either in the order of the court or in the way. in which the order- was carried out. The purpose of the eourt in anticipating a failure of the regular.' panel and directing the summoning of bystanders in advance of the calling of the case for trial was' both to save time and to .assure the availability as jurors of- other persons -than the usual courtroom habitues. This did not amount to the court’s “handpicking” the jurors—they were still to be selected as well as summoned by the duly authorized officers for that purpose, viz., the marshal. In this respect the instant case is sharply distinguishable from both Gideon v. United States (C. C. A. 8) 52 F.(2d) 427, and Rhodman v. State, 153 Miss. 15, 120 So. 201, relied on by defendants. Nor was the order of the court in violation of section 280 of the Judicial Code, § 417, title 28, USCA, which reads as follows: “When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which -such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the eourt may appoint, and such person shall be sworn, as" provided in section 416 of this title.” The above provision, as section 804, Revised Statutes, was construed in United States v. Loughery, 13 Blatchf. 267, 26 Fed. Cas. 998, No. 15,631, with reference to exactly the same thing that was done in the instant ease, except that it was there done after the case had been called for trial. The eourt said, referring to said section 804: “In this case, the point taken is, that the persons summoned by the marshal, in pursuance of the order of the eourt, were not bystanders, because not in eourt when summoned by the marshal. But, these persons were present in court when they were returned by the marshal as present, and when their names were placed upon the panel, and their ballots placed in the wheel; and the statute is complied with, if the persons returned by the marshal are present in court when so returned. How long they had been present, or how they happened to be present, is of no consequence, provided no fraud or collusion or improper action is'suggested. At common law, the duty of selecting jurors belongs to the sheriff, and it would seriously embarrass trials if it were held that, when a panel fails by reason of challenges, and talesmen are ordered, the marshal is bound to return the talesmen from those who happen, at the instant of making the order, to be present in court. * * * They may be persons whose presence has been secured by the accused in anticipation of a failure of the panel. ‘Persons, who are not bystanders in the eourt, may be summoned as talesmen, for, when they come in,, they axe bystanders.’ 5 Báe. Abr. ‘Juries,’ p. 337.” The trial court in passing on the motion for new. trial observed that it had always been the practice in the district in similar situations to summon jurors not only from the courtroom but from the immediate vicinity. That “there were not in the eourt room, in my judgment, at the time the regular jury panel was first qualified on that date, any persons fit to be jurors except those on the regular panel. In fact it appeared those in the court room outside of those on the case and in the regular panel were witnesses who had been summoned in the ease; and it would have been impossible at that time before this ease was called for trial at the opening hour of court on that day to have found anyone in the court room itself who was qualified to sit as a juror.” In the carrying out of the court’s order the marshal had a certain amount of discretion. There is no evidence of his having abused it. It appears that he selected the talesmen in this case by the same procedure that he ordinarily followed in similar circumstances. There is a presumption that the marshal will do his duty without favor, unless it affirmatively appears that he “is not an indifferent person, or is interested in the event of the cause.” Section 279, Judicial Code, 28 USC A § 416. In the latter event it becomes the duty of the court to appoint an indifferent person in the marshal’s stead, to select the talesmen. Section 280-, Judicial Code, 28 USC A § 417, supra. Thus where it affirmatively appeared that the marshal had himself been active in the detection and prosecution of the defendants to be tried, it was held that he was “not a fit person to be intrusted with the power to return jurymen from bystanders to complete the panel for the immediate ease,” and that the court should have, in conformity with section 280 of the Judicial Code, supra, appointed an indifferent person to act in his stead. Johnson v. United States et al. (C. C. A. 9) 247 F. 92, 95. But the marshal is not an adjunct of the District Attorney’s office, and, unless circumstances of the above sort affirmatively appear, he will be presumed to have acted indifferently. Defendants do.not charge any fraud or corruption or improper conduct of the marshal, but do charge that this procedure resulted in the “packing” of the jury by the government against the accused. The mere fact that jurors are summoned by the marshal and paid by the government does not make them “government men” on a jury. There is no evidence of any “packing” of the jury. Nor was it necessarily reversible error for the marshal to summon as talesmen men who had previously given their names to the marshal or his deputies as being available for jury service. There is not the slightest evidence that the jurors so chosen were so much as known to the District Attorney’s office, or that the motives prompting their availability for jury service, whether financial or otherwise, were in any way inconsistent with the utmost fairness on their part to the defendants. It is an era when many honest and capable men are glad of the opportunity to earn jury fees. Most of the cases cited by defendants involve either positive misconduct or the elearcut violation of an applicable state statute. In the instant ease there is no evidence of misconduct on the part of any one, and we are unable to find any violation of either the spirit or the letter of the applicable federal statutes. We think the trial court did the sensible and proper thing under the circumstances. Cross-Examination of Defendant Alice B. Todd. Counsel for the government sought to have Miss Todd testify on her cross-examination that the $221,351.44 which she reported to the" Farm Loan Board as being on deposit in' the First National Bank at Kansas City was not in fact so deposited, and then endeavored to compel her to answer yes or no as to whether said entry was a true or false one. This occurred: “Q. When you reported to the Farm Loan Board that there was $221,000,00 odd dollars on deposit in the First National Bank of Kansas pity, $221,351.44, that was not actually on deposit in the First National Bank of Kansas City, was it, Miss Todd ? A. The amount was not' actually on deposit in .the First National Bank of Kansas City, on that date. “Q. And it wasn’t on this date that you made the report to the Board, was it? A. Probably not. “Q. It wasn’t when you made the report of November 24? A. I think -not.” The witness was unwilling to admit, any false statement in the report or in the entry on the bank books, and after prolonged controversy between the witness and counsel for the government and after she had repeatedly been asked the question as to whether the entry she had spoken of as being put in the report by her of the deposit in the First National Bank was a true or false entry, she refusing to answer directly, this occurred: “The Court: The witness can certainly answer if she drew up this report, whether the statement contained therein is true or false. “Mr. Conrad: Exception please. (To which ruling of the court the defendants by their counsel then and there duly excepted at the time and still except.) “Q. The court says for you to state whether this statement was true or false. “The Court :- ' It is one or the other. A. The statement is incorrect, based on the books. - “Q. I didn’t ask you that. I asked you whether the statement in the book was true or false. Answer it please. I insist on an answer. “The Court: Answer the question, Miss Todd. “Q. You were the secretary of the bank. A. The statement-was incorrect. “Mr. Dodds: The witness hasn’t answered the question, may it please the court. “The Court ;■ Answer the question. A. May I ask Your Honor a question? “The Court: Yes. A. After I have answered this question, may I explain it? “The Court: Yes. “Q. Answer it. “Mr. Conrad: Exception. (To which ruling of the court the defendants by their counsel then and there excepted at the time and still exeept.) “Q. Is the statement made therein true or false? A. The statement may be admitted to -be falsé as reflecting the actual deposit— “Q.’Now, Miss Todd— “Mr. Conrad (interrupting) : We object to him interfering with the answer, now. “The Court: Yes. A. But the bank held in its possession not only Mr. Cravens’ cheek for the amount, but the collateral pledged to that check of value equal to the sum shown on deposit.” In the District Court’s thus permitting the government to force Miss Todd to admit the falsity of the statement contained in the report to the Federal Farm Loan Board, defendants contend that reversible error was committed, in that (a) the inquiry was without the scope of proper cross-examination; (b) it called for a conclusion, thus invading the province of the jury; (e) it related to a crime for which she was not indicted; and (d) Miss Todd was thus forced to incriminate herself in violation of the Fifth Amendment to the Constitution. If the inquiry was proper cross-examination, there- is nothing to the contention that defendant' Todd was forced to incriminate herself in violation of the Fifth Amendment; For she had already taken the witness stand in her own behalf and waived her- immunity under the Fifth Ameridment. Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054. The rule as to the limitation' of cross-examination of a defendant who testifies is-well settled in this circuit. The same limitation applies as to any other witness, and a defendant subjects himself to cross-examination as to the facts in issue inquired about in direct examination exactly the same as any other witness and to no greater extent. Harrold v. Oklahoma (C. C. A. 8) 169 F. 47, 17 Ann. Cas. 868; De Witt v. Skinner (C. C. A.) 232 F. 443; Tucker v. United States (C. C. A. 8) 5 F.(2d) 818; Gideon v. United States (C. C. A. 8) 52 F.(2d) 427; Salerno v. United States (C. C. A. 8) 61 F.(2d) 419, (opinion filed October 26, 1932); Clark v. United States (C. C. A. 8) 61 F.(2d) 695 (opinion filed October 20, 1932). Did this cross-examination bear on testimony given by her on direct examination? Miss Todd was the main witness for the defendants, and was examined at great length upon the direct examination. Her evidence covers nearly every phase of the numerous transactions involved. Mr. Cravens’ examination was very brief in comparison. In fact his counsel in questioning him stated, “the counts in this indictment from the first to the last have been covered by the testimony of Miss Todd.” Miss Todd was asked on direct examination: “Miss Todd, I want to ask you this question: Tell this jury whether you at any time ever made an entry on the books or took part in any kind or character of transaction involved in these counts or otherwise with any intent to defraud this bank out of a penny of money in any way whatsoever ? ” She answered: “I did not.” She was asked: “Do you know of your own personal knowledge of any act or anything done by Mr. Cravens, of the receipt of any money by him in reference to or from this bank with the intention in any way of depriving or defrauding this bank of a penny ? ” She answered : “I certainly do not.” She was asked: “Tell the jury whether or not you yourself, or of your own knowledge, there was ever an entry made upon the books of this bank at any time for the purpose of deceiving any person whomsoever.” She answered: “No, sir.” Finally she was asked: “Do you know of any entry having been made by any person, including Mr. Cravens, or his knowledge of any transaction which had for its purpose deceiving any individual, whether farm loan examiner or whomsoever he might be—of deceiving him in any respect whatsoever?” She answered: “I do-not.” This testimony on direct examination opened the door to a very wide cross-examination. The falsity of the statement in the report to the Federal Farm Loan Board had a very direct bearing, not only upon the issue of intention to deceive, but upon the falsity of the entries in the books of the land bank from which the statement in the report was made up, and which entries formed the direct basis of several of the counts in the indictment. It thus follows that defendant Todd was neither subjected to improper cross-examination nor forced to incriminate herself in violation of the Fifth Amendment. It is to be noted also that the privilege against self-incrimination was not raised at the trial. No objection to the testimony was made on that ground—hence the protection of the Fifth Amendment which is personal was waived and eannot now be urged. In re Knickerbocker Steamboat Co. (D. C.) 139 F. 713; United States v. Skinner (D. C.) 218 F. 870; United States v. Elton (D. C.) 222 F. 428; United States v. Hoyt (D. C. S. D. N. Y.) 53 F.(2d) 881; Brown v. Walker, 161 U. S. 591, 16 S. Ct. 644, 40 L. Ed. 819; Kolbrenner v. United States (C. C. A. 5) 11 F.(2d) 754; United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 47 S. Ct. 302, 71 L. Ed. 560. Nor do we find error in the fact that the inquiry on cross-examination may have brought to light criminal conduct other than that for which defendants were indicted, the inquiry being logically relevant to the subject-matter of the direct examination. Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054. The general rule as to proof of other crimes has been stated by this court many times. Thus we said in Cook v. United States (C. C. A. 8) 28 F.(2d) 730, 732: “As a general rule, evidence of other crimes is inadmissible, but to this rule there are certain well-recognized exceptions. It does not apply where the evidence of another crime tends directly to prove the crime charged, and evidence which is relevant to defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another separate and distinct crime. It often happens that two distinct offenses are so inseparably connected as in the instant case that the proof of one necessarily involves proof of the other, and in such ease on the prosecution for one, evidence proving it should not be excluded because it also proves the other.” In Levy v. United States (C. C. A. 8) 35 F.(2d) 483, 485, this court said: “The mere fact that the evidence in a chain of circumstances may show crimes other than the one for which the party is on trial is not sufficient to exclude the same.” In Doyle v. United States (C. C. A. 8) 33 F.(2d) 265, 266, we pointed out: “Three cases in this circuit—McMillan v. U. S. (C. C. A.) 27 F.(2d) 94; Anderson v. U. S. (C. C. A.) 18 F.(2d) 404, and Cook v. U. S. (C. C. A.) 14 F.(2d) 833—have passed on this question. They hold that evidence of distinct offenses, independent of those charged in the indictment or information, is competent only where intent is an essential ingredient of the crime charged, except where they are so related to the main issue, or are part of the surrounding circumstances in respect to time and character, as to aid in its solution, and that considerable discretion is allowed the trial judge in deciding whether such evidence tends in some degree, at least, to corroborate the other evidence.” In Caldwell v. United States (C. C. A. 10) 36 F.(2d) 742, the facts were just the reverse of the facts in the instant case, in that there the court admitted evidence of false entries in the books of the bank, for which the defendant was not on trial, as bearing on whether or not he had made a false entry in a report to the comptroller, for which he was on trial. At pages 744, 745 of 36 F.(2d) the court said: “Complaint is made concerning the admission of evidence as to false entries in thé sum of $120,000, in the books of the bank, 16 days prior to the false entry of the same amount in the report to the comptroller charged in the indictment. As a part of the transaction, the government had a perfect right to show that the defendant first falsified the books of the bank, and then falsified the report to the comptroller to correspond. This assignment is entirely without merit.” Bettman v. United States (C. C. A. 6) 224 F. 819; Galbreath v. United States (C. C. A. 6) 257 F. 648; Astwood v. United States (C. C. A. 8) 1 F.(2d) 639; Arnold v. United States (C. C. A. 7) 7 F.(2d) 867, 871; Niederluecke v. United States (C. C. A. 8) 21 F.(2d) 511. The testimony of defendant Todd concerning the falsity of the statement in question was not rendered inadmissible -for the reason that it tended to prove defendants guilty of another separate and distinct crime. The only remaining question in connection with the testimony of defendant Todd is whether it was error, as calling for a conclusion and thereby invading the province of the jury, to confine her to the words “true” or “false” in answering the question concerning the statement in the report to the Federal Farm Loan Board. In view of the entire record we do not deem this question of much importance, for it conclusively appears from the testimony that no prejudice could have resulted from her being compelled to answer the question, as she finally did, because she had fully and- in detail explained all the facts and circumstances and had put her own interpretation upon the term “false” as used by her. Sufficiency of Evidence. Strong argument' is presented here on the proposition that the evidence was insufficient to sustain the verdict of the jury upon each of the numerous counts. We cannot be concerned with the credibility or weight of the -evidence, or the plausibility of defendants’explanations. It is not our function to determine the guilt or innocence of defendants. That is for the jury. It is well established in this circuit that, if the government’s evidence on any particular count is as consistent with innocence as it is with guilt, it is insufficient to sustain the verdict, and that question demands our' attention. Turinetti v. United States (C. C. A. 8) 2 F.(2d) 15; Ezzard v. United States (C. C. A. 8) 7 F.(2d) 808; Bishop v. United States (C. C. A. 8) 16 F.(2d) 410; Dickerson v. United States (C. C. A. 8) 18 F.(2d) 887; Van Gorder v. United States (C. C. A. 8) 21 F.(2d) 939; Philyaw v. United States (C. C. A. 8) 29 F.(2d) 225; Gold v. United States (C. C. A. 8) 36 F.(2d) 16; Peightel v. United States (C. C. A. 8) 49 F.(2d) 235. The indictment with its 88 counts covers 192 pages of the printed record. The evidence is voluminous. These counts may be conveniently divided into two groups. One may be termed the misapplication counts and the other the false entry counts. The misapplication counts are 1 to 33 inclusive, which involves some $133,922.61; counts 54, 55, 56, and 57, involving $53,276.59; 72 to 80 inclusive involving $78,354.22, making a total of 46 counts, involving $265,553.42 of alleged misapplication by defendants of the land' bank’s funds. The false entry counts are 34 to 53 inclusive, involving $718,543.15; 58 to 71 inclusive involving $9,440.09; 81 to 88 inclusive involving $20,804.84, a total of 42 counts involving $748,788.08 of alleged false entries on the books of the land bank. Count 1 of the indictment, which we take as typical-of the first 33 counts, set forth that Walter Cravens was a director and officer, to wit, president of the Kansas City Joint Stock Land Bank, and was also financially interested and. engaged in the promotion and development as director and officer, to wit, president of the Missouri Hydro-Electric Power Company, operating and doing business in connection with and incident to the development of a power project in said state of Missouri, which was a speculative and financially uncertain venture; that he was also interested financially, and a shareholder, in the Kansas City Finance Company, a corporation of the state of Missouri, engaged in buying and selling securities of divers sorts and kinds, and was engaged at the times mentioned in the indictment in assisting in the promotion of said Missouri Hydro-Electric Power project; that Alice B. Todd was secretary of said Joint Stock Land Bank; that Walter Cravens and Alice B. Todd were actively engaged in conducting, directing, managing, and supervising the business of said Joint Stock Land Bank, and possessed of power and control, direction and management over its moneys, funds, and credits, and that “they, said Walter Cravens and said Alice B. Todd, with intent on their part and upon the part of each of them to injure and defraud said joint stock land bank, certain of the moneys, funds and credits of said joint stock land bank then and ■there being to the amount and of- the value of, to-wit, $1,189.30, unlawfully and feloniously did wilfully misapply by unlawfully, feloniously, wilfully and fraudulently and not for any use, benefit or- advantage of said joint stock land bank, converting and applying that sum of moneys, funds and credits of said joint stock land bank to the use, benefit and advantage of the said Missouri Hydro-Electric Power Company, and to the use, benefit and advantage of said Kansas City Finance Company and to the use, benefit and advantage of said Waiter Cravens as the owner of divers shares of the capital stock of said Missouri Hydro-Electric Power Company and of said Kansas City Finance Company, and by reason of his financial interest in the promotion and development of the said water power project of the said Missouri Hydro-Electric Power Company, and to the use, benefit and advantage of divers other persons, firms and corporations to the grand jurors unknown, whi'eh said conversion and misapplication of the said sum of the moneys, funds and credits of said joint stock land bank was then and there accomplished by said Walter Cravens and said Alice B. Todd in the manner following, that is to say: by virtue of the power of control, . direction, management and supervision which said Walter Cravens and said Alice B. Todd, then and there, on, to-wit, said July 6, 1925, had and possessed over the moneys, funds and credits of said joint stock land bank by reason of their connection therewith in the respective capacities hereinbefore stated, they, said Walter Cravens and said Alice B. Todd, then and there, to-wit, at said Kansas City, Missouri, on, to-wit, said July 6, .1925, with the intent aforesaid, did wilfully and fraudulently execute a check of said joint stock land bank, in the sum of $1,189.30, payable to said Kansas City Finance Company, drawn upon the First National Bank, Kansas City, Missouri, and signed by said Walter Cravens and said Alice B. Todd as president and secretary, respectively, of said joint stock land bank, being a check dated July 6, 1925, and designated by the number 31290, and with which said First National Bank, Kansas City, Missouri, said joint stock land bank then and there had moneys, funds and credits, subject to the payment of checks of said joint stock land bank executed by said Walter Cravens and said Alice B. Todd as president and secretary) respectively, thereof, and which said check said Walter Cravens and said Alice B. Todd forthwith delivered and caused to be delivered to the said Kansas City Finance Company, which said Kansas City Finance Company then and there deposited said cheek to the credit of said Kansas City Finance Company in said First National Bank of Kansas City, Missouri, by which said First National Bank the amount of said check was charged to the account of said joint stock land bank with said First National Bank and credited to said Kansas City Finance Company, which said Kansas City Finance Company forthwith disbursed that sum to divers persons, firms and corporations to the grand jurors unknown in payment to said divers unknown persons, firms and corporations of financial obligations of the said Missouri Hydro-Electric Power Company to said divers unknown persons, firms and corporations, when, as said Walter Cravens and said Alice B. Todd then and there well knew, there was no consideration to said joint stock land bank for the execution and delivery of said check and said check did not represent the payment of any sum then and there owing by said joint stock land bank to the said payee, or to said Missouri Hydro-Electric Power Company, or to any other person, firm or corporation whatsoever, but that, on the contrary, said check was, in truth and in f aet, so executed and delivered in order to accomplish and effect an unwarranted and wholly fraudulent payment of that sum of the moneys, funds and credits of said joint stock land bank by the said First National Bank of Kansas City, Missouri, to said payee, in behalf of and for the use, benefit, advantage and credit of said Missouri Hydro-Electric Power Company; and this when, as said Walter Cravens and said Alice B. Todd then and there well knew, neither said Missouri Hydro-Electric Power Company nor said Kansas City Finance Company had any moneys, funds or credits with said joint stock land bank, nor any right of any kind or nature whatsoever to have such sum, or any sum, of the moneys, funds and credits of said joint stock land bank so applied; whereby the said sum of $1,189.30 of the moneys, funds and credits of said joint stock land bank was wholly lost to said joint stock land bank, and the assets thereof depleted in that amount.” The evidence under the first 33 counts of the indictment shows that between July 2, 1925, and October 9, 1925, the defendants paid out of the land bank, by checks signed by themselves, the aggregate sum of $133,922.-61; that this amount was disbursed through the Kansas City Finance Company, a corporation controlled by defendants, for the payment of expenses incurred on behalf of the Missouri Hydro-Electric Power Company, a corporation controlled by defendant Cravens; and that it was charged on the books of the land bank t