It was not denied that defendant certified the checks, and that the account of Dobbins & Dazey was overdrawn when the certifications took place. The questions for determination were defendant's knowledge of the state of Dobbins & Dazey's account when the checks were certified, and his intent in the certifications.
Section 5208 made it unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn upon it, unless the drawer of the check had on deposit, at the time such check was certified, an amount of money equal to the amount specified therein, and provided the consequences which should follow on a violation of the section. Then came section 13 of the act of July 12, 1882, which made a willful violation of section 5208 criminal, and denounced a penalty thereon.
These sections were under consideration in Potter v. U.S., 155 U.S. 438, 445, 15 Sup. Ct. 144, and the court said:
'The charge is of a willful violation. That is the language of the statute. Section 5208, Rev. St., makes it unlawful for any officer of a national bank to certify a check unless the drawer has on deposit at the time an equal amount of money. But this section carries with it no penalty against the wrongdoing officer. Section 13 of the act of 1882 imposes the penalty, and imposes it upon one 'who shall willfully violate,' etc., as well as upon one 'who shall resort to any device,' etc., 'to ev de the provisions of the act,' 'or who shall certify checks before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association.' The word 'willful' is omitted from the description of offenses in the latter part of this section. Its presence in the first cannot be regarded as mere surplusage; it means something. It implies on the part of the officer knowledge and a purpose to do wrong. Something more is required than an act of certification made in excess of the actual deposit, but in ignorance of that fact, or without any purpose to evade or disobey the mandates of the law. The significance of the word 'willful' in criminal statutes has been considered by this court. In Felton v. U.S., 96 U.S. 699, 702, it was said: 'Doing or omitting to do a thing knowingly and willfully implies, not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. 'The word 'willfully," says Chief Justice Shaw, 'in the ordinary sense in which it is used in statutes, means, not merely 'voluntarily,' but with a bad purpose.' Com. v. Kneeland, 20 Pick. 220. 'It is frequently understood,' says Bishop, 'as signifying an evil intent without justifiable excuse.' 1 Bish. Cr. Law, § 428.'
'And later, in the case of Evans v. U.S., 153 U.S. 584, 594, 14 Sup. Ct. 934, 939, there was this reference to the words 'willfully misapplied': 'In fact, the gravamen of the offense consists in the evil design with which the misapplication is made, and a count which should omit the words 'willfully,' etc., and 'with intent to defraud,' would be clearly bad.' * *
*'While it is true that care must be taken not to weaken the wholesome provisions of the statutes designed to protect depositors and stockholders against the wrongdoings of banking officials, it is of equal importance that they should not be so construed as to make transactions of such officials, carried on with the utmost honesty, and in a sincere belief that no wrong was being done, criminal offenses, and subjecting them to the severe punishments which may be imposed under those statutes.'
The wrongful intent is the essence of the crime. If an officer certifies a check with the intent that the drawer shall obtain so much money out of the bank, when he has none there, such officer not only certifies unlawfully, but the specific intent to violate the statute may be imputed. And so evil design may be presumed if the officer purposely keeps himself in ignorance of whether the drawer has money in the bank or not, or is grossly indifferent to his duty in respect to the ascertainment of that fact.