Hastings, Senior Circuit Judge, and Swygert and Fairchild, Circuit Judges.
Defendant Haggerty is the long time Secretary-Treasurer of the Milk Wagon Drivers Union*fn1 in Chicago. He was charged, in Count I, with embezzling $25,000 of union funds on July 24, 1962*fn2 and, in Court II, with wilfully causing false entries on that date in union records which the law required to be kept.*fn3 The jury found him not guilty of Count I but guilty of Count II. He has appealed.
Both counts relate to a union check for $25,000, drawn on First National Bank, dated July 24, 1962, and payable to Drovers National Bank. The union bookkeeper, Thomas Heneghan, entered the check in the union cash disbursements journal on July 24 with the explanation, "Transfer of Fund". The union had a savings account at Drovers. Heneghan testified: "Mr. Haggerty told me to give him the pass book for the Drovers Bank, which I did, and a check was given to Mr. Haggerty. He told me to make the entry for the transfer of funds from the First National Bank to the Drovers National Bank in the amount of $25,000." Heneghan pointed out that the commercial account at First National yielded no interest, but the savings account would, and stated that a transfer of funds is just a transfer from one bank to the other.
Haggerty did not deposit the check in the savings account at Drovers. He applied it on a $100,000 note due Drovers from Bert Ferrell and guaranteed by Haggerty, Mr. Adamowski and two Trilla brothers.
For a period of months, Haggerty did not return the Drovers pass book to Heneghan and the canceled $25,000 check, paid by First National July 25, was not turned over to the other trustees of the union with the other canceled checks in the customary manner. The jury could properly infer that Haggerty wished to avoid examination of the transaction. On October 23, 1962 he deposited $25,000 in the union's savings account at Drovers. He raised the money from personal sources. This occurred after a Department of Labor subpoena had been served, requiring production of the union records.
Haggerty's defense to the embezzlement count was that in the light of the background of the $100,000 Ferrell transaction, the $25,000 check had been used for a union and not a personal purpose. The jury believed him, or at least had enough doubt to acquit him on that count.
The explanation for the $25,000 check entered in the cash disbursements journal was clearly wrong. It indicated that the check would not change the union's cash position, but would increase its account at Drovers by the same amount it decreased its account at First National. The issue on Count II was whether Mr. Haggerty had wilfully caused the entry.
He gave no testimony on this point on direct examination, but on cross-examination, testified as follows:
"Q. Did you see Mr. Heneghan on July 24, 1962, and request a check from him at that time?
"Q. What did you tell him about your purpose for that check at that time?
"A. I just asked him for the check. I don't tell him what is the purpose of the check. But he surmised that it was going to be for a deposit or some kind of an investment.
"Q. Did you tell him that you were even going to make a deposit of any kind?
"A. No. I don't have to tell him because he sees afterwards what is done with the investment.
"Q. So, you told Mr. Heneghan nothing as to what he should put into the books and ...