1 N.E.2d 452 | Ind. | 1936
Appellant was indicted for the crime of banker's embezzlement, which consists in accepting a deposit when a bank is insolvent. Upon the first trial the jury disagreed. Upon the second trial appellant was convicted.
Error is predicated upon the overruling of a motion for a new trial.
The following instruction was given:
"In determining whether or not the deposit charged to have been made was unlawfully, feloniously and fraudulently received by the defendant, Milton K. Jacobs, it is the law that if such Banking Company was insolvent at the time such deposit was received, and such insolvency was known to the defendant, or if the defendant could have known of such insolvency, if such insolvency in fact existed, by the exercise of ordinary care and diligence to ascertain such fact, if such fact existed, then such deposit was unlawfully, feloniously and fraudulently received by the defendant, whether the defendant did or did not actually at the time intend to defraud the depositor.
"If you find from the evidence that the Noble County Bank and Trust Company suspended its business within thirty days from the time of receiving such deposit, then such suspension is prima facie evidence that the taking and receiving of such deposit was unlawful, felonious and fraudulent, and such presumption, in the absence of evidence to the contrary, would warrant the conviction of the defendant, so far as this element in the charge in the affidavit is concerned. *109
"The absence of such knowledge on the part of the defendant, of insolvency, if such insolvency in fact existed, would prevent the conviction of the defendant in this cause, unless such lack of knowledge was the result of a lack of ordinary care and diligence on his part to ascertain the true condition of such Banking Company at such time."
The theory upon which the case was tried is disclosed by this instruction and others of a similar character.
In Walter v. State (1935),
In Green v. State (1933),
The case of State v. Beach (1897),
The jury was instructed that, if the depositor was deprived of her right to draw checks on account of her deposit, or any part thereof, for any period of time, because of the suspension of the bank, the deposit was lost to her within the meaning of the statute. The same instruction was held erroneous in Gillian v.State, supra, and, upon authority of that case and Smith v.State *111
(1932),
The jury was instructed that, if the defendant received the check in question as a deposit, and the depositor was not then indebted to such banking company in any sum in excess of 2, 3. the amount of the check deposited, the statute which declares against accepting a deposit from one who is "not indebted to such banking company," would be satisfied. It is contended that, under the statute, there can be no guilt in accepting a deposit, no matter how large, from one who is indebted to the banking company in any amount, no matter how small. The purpose of the statute is to punish where deposits are received with knowledge of insolvency, and to the loss of the depositor. If a deposit is made which may be set off against an indebtedness there is no loss, and the statute clearly intends in such case that there is no criminal liability. But where there is an indebtedness, and a deposit is accepted which is in excess of the indebtedness, and the excess or part of it is lost, the acceptance of the deposit must be treated as within the terms of the statute.
Error is assigned upon the overruling of defendant's challenge to the array of the jury. It appears from the evidence of one of the jury commissioners that, in selecting the names of 4-6. jurors to be placed in the jury box, no women were included; that the commissioners were not requested to select women, nor were they requested to select men only; that "it was on our own initiative and conclusion that we selected only men." He testified that women were excluded from those selected because females had never been used on juries in Steuben county. It is insisted that the jury was unlawfully drawn, andWalter v. State, supra, is cited as authority for this position. It is held in that case that women, or any other class, may not be arbitrarily *112 excluded in the selection of a jury; that jury commissioners must personally perform the discretionary duties vested in them; that the names selected for jury service must be selected from all of the qualified legal voters on the tax duplicate, but that this does not mean that all classes must be represented among the jurors selected. "It does mean that the jury commissioners must exercise their own judgment and discretion in selecting the names, and that in making the selection they may not arbitrarily refuse to consider any class or classes of persons." The question here presented is whether the jury commissioners arbitrarily excluded women. That is a question of fact which was determined in the negative by the trial court. The trial judge heard the commissioner testify, and had the opportunity to observe him, and to weigh all of the evidence given. It may be difficult for a jury commissioner, acting in good faith in an effort to select the best possible names for jurors, to explain the mental processes which resulted in the selection that was made, and resulted in the exclusion of all other names. But if the selection was made in a good-faith exercise of the discretion vested in the commissioner, a violation of his statutory duty will not be assumed because of the result. It cannot be said as a matter of law that the evidence required that the challenge be sustained.
Judgment reversed, with instructions to sustain appellant's motion for a new trial.