Mulloney v. United States.

79 F.2d 566 (1935) | Cited 30 times | First Circuit | November 7, 1935

On Petition for Rehearing.

Per Curiam.

With reference to the defendant Mulloney's petition for rehearing on the ground that this court misunderstood the facts appearing in the record with reference to the interest of Mulloney, Deery, and Logan as stockholders in the Salem Realty Company, it appears that this was error. This, in part, has already been corrected as appears in the last paragraph on page 583 of the opinion; but the opinion also based their disqualification to vote on the loan to Miss Ganley upon the fact that they were the sole stockholders in the Federal National Company and directors of that company; and the trial judge held that the loan was made in part, to aid the Federal National Company.

In the first full paragraph on page 582 of the opinion, after the words "as stockholders," in the thirteenth line thereof, the words "or otherwise," may be added.

It is also urged that the [former] statement in the opinion on page 582 that the loans to the Federal National Company from other banks were in default as to interest was not supported by the evidence. We think the evidence tends to show that it was. However, this sentence is not essential to the result arrived at and may be stricken out.

It is also urged that the trial judge made no finding as to the disqualification of Mulloney, Deery, and Logan as directors of the Federal National Bank to vote on the Ganley loan, and this question is not open in this court. The trial judge did not undertake to make special findings of all the ultimate facts, nor was he obliged to do so in his memorandum of decision. However, he also based his conclusions as to the guilt of the defendants on the ground that the loan was made without a full knowledge of the facts material to its security, which were not communicated to the board of directors by either Mulloney or Deery. We think it cannot be said that the loan was made with the assent of the bank or its board of directors, nor was it ever acquiesced in by the board with a full knowledge of the facts.

The third ground for rehearing is that the findings of the trial judge -- that the loan to Miss Ganley was a real transaction and correctly entered on the books of the bank -- constituting the reason for this discharging the defendants under the second count, is inconsistent with the general finding of guilt or any finding necessarily included in the general finding and supported by the evidence.

As to this it may be said there was no finding by the trial judge in his memorandum of decision that Miss Ganley was a straw maker and a dummy for John Deery, and no such finding was necessary to support the general finding of guilt. A loan to her, who was financially irresponsible, without sufficient security, and indirectly to aid the Salem Trust Company, through Deery to establish its credit with the Federal National Bank and enable it to loan a large sum to the Federal National Company, might well result in injury to the Federal National Bank, which Mulloney and Deery must have known.It would constitute a misapplication of the funds of the bank if done without the requisite consent of the board of directors, as was the case here; and such a finding would be included in the feneral finding of guilt. This is the manner in which the trial judge specifically found the misapplication was brought about.

There was sufficient evidence to support such a finding and it would be included in the general finding of guilt, if the first count of the indictment charged a misapplication of the funds of the bank after that manner and form, so that the defendants would be informed thereof and enabled to defend against the charge. The first count, fairly construed, charges such a misapplication of the funds of the bank.

With the above changes in the opinion, the petition for rehearing is denied.

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