218 Wis. 472 | Wis. | 1935
The acts of the defendant'involved were committed between June 2d and June 9, 1931. They were
(1) Count 1 charges in the language of sec. 221.39, Stats., that the defendant on June 4, 1931, being president of the Shorewood Bank, by his issuance of the $13,732 check without funds on deposit to cover it, embezzled, abstracted, and misapplied moneys of said bank, and made false entries in the books thereof with intent to defraud the bank and to deceive the cashier and othervofficers of the bank..and other persons and agents appointed to examine the-affairs of -the bank. It thus charges violations of the statute in-each of the particulars above enumerated as (a) and (b).
The defendant claims that because there is no evidence that the defendant had possession of the funds of the bank, proof is lacking of an essential element of an offense under the statute! This would be true if the only offense charged
This leaves for consideration upon (a) of this count whether the defendant in drawing the check did so with intent to defraud the bank. It must be conceded, and counsel for the defendant so conceded on the argument, that had six months elapsed before the defendant covered his overdraft, an inference of intent to defraud might rightly have been inferred. Does the fact that only four days elapsed, instead of six months, preclude that inference, especially as the overdraft was covered by kiting manipulations which were in themselves wrongful? Mere lapse of time cannot of itself make that done with intent to defraud which was in fact done without such intent. Neither can mere shortness of time make what was done with intent to defraud, done without such intent. There can be no question that had the Marine Bank not made the loan, and the Shorewood Bank had cashed the check on presentment by the Building Company, the Shorewood Bank would have been injured. Had this been the situation, the inference of intent to defraud the bank would have been clearly warranted. In Agnew v. U. S. 165 U. S. 36, 53, 17 Sup, Ct. 235, 41 L. Ed. 624, a case under a federal act of which our sec. 221.39 is a practical duplicate, the court approved the following instruction :
“The law presumes that every man intends the legitimate consequences of his own acts. Wrongful acts knowingly or intentionally committed can neither be justified or excused on the ground of an innocent intent. The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well-settled rule, which the law applies*482 in both criminal and civil cases-, that the intent is presumed and inferred from the result of the action.”
An intent and expectation to make good an overdraft, without the present ability to do so, does not preclude the inference of fraudulent intent. When one deliberately and intentionally converts funds of Which he is custodian to his own use, the-offense of embezzlement is complete although he intends and expects to-restore the funds wrongfully, converted. “From that [deliberate and intentional conversion] the law infers-a wrongful and felonious intent.” Glasheen v. State, 188 Wis. 268, 274, 205 N. W. 820. Intent to defraud is presumed in such case. The same would be true if one so converted such funds to the use of another. Upon like' reason, when a president of a bank deliberately and intentionally abstracts the funds of the bank and converts them to, the use of himself or another, the offense under sec. 221.39 is completed and the intent to defraud the bank is presumed, although he at the time intends and expects to restore the abstracted funds shortly or before the abstraction is discovered. The opinion in the Glasheen Case, supra, cites State v. Kortgaard, 62 Minn. 7, 64 N. W. 51, to the effect that the intent to defraud is presumed from the act of a bank officer in deliberately and intentionally committing the unlawful act of loaning to himself or overdrawing his account, and quotes : '
“When an act, in itself indifferent, becomes criminal only when done with a particular intent, the intent must be proved; but when the act is, in itself, unlawful, the criminal intent is presumed from the intentional commission of the act.”
In the instant case, the acts of the defendant in drawing the check and in concealing the overdraft on the bank’s books by the false deposit slip and. the false credit slip, were intentional and deliberate. These acts were unlawful. From
(b) The defendant contends that the evidence does not warrant conviction of making false entries on the books of the bank with the requisite intent to deceive. It is urged
“It is perfectly apparent that any false entry in any account book of a bank used in transacting its banking business is calculated to deceive” any person who- may examine the entries.
There was in fact no deposit, and in fact no credit had been granted. The entries of the deposit and the debit were made on the bank’s books by the direction of the defendant. Whether the defendant himself made out the slips as the cashier claimed, or whether the cashier made them by the defendant’s direction as defendant claims, is immaterial. The entries were false entries and the defendant directed their entry. As to intent “to deceive any officer of the bank . . . or any other person, or any agent appointed to examine the affairs of such bank,” declared in the statute, it seems only necessary to inquire why were the entries made if not to deceive anyone who might examine them, whether an officer of the bank or a bank examiner who might examine the bank’s books ? Officers of the bank and bank examiners are the only ones likely to examine the books of the bank. The effect of the false entries manifestly was to deceive as declared by the statute. No intent other than so to deceive is apparent.
(2) Count 3 charges that the defendant, being president and director of the Shorewood Bank, on June 4th, wilfully and knowingly caused to be made false entries in the books of the bank with intent to deceive any person authorized to examine into the affairs of the bank. The charge is based upon sec. 221.17’ Stats. Enough is said to justify conviction upon this count in (b) under Count 1 above. In Hobbins v. State, 214 Wis. 496, 253 N. W. 570, this statute was said to cover false entries with intent to deceive the bank examiners. What is said above in (b) under Count 1 is not inconsistent with the ruling of the Hobbins Case that the act there charged could not have deceived the bank examiners. The entry there involved was of a different nature, and the factual situation was clearly apparent from documents a bank examiner would necessarily examine in examining into the affairs of the bank. Had this charge not been covered by Count 1, the conviction would stand. But the part of sec. 221.39, Stats., relating to false entries with intent to deceive any person authorized to examine into the affairs of a bank expressly covers the offense declared by sec. 221.17. If the conviction under sec. 221.39 had been only for making false
(3) Count 6 charges in effect that the defendant on June 8th “embezzled, abstracted and wilfully misapplied moneys” of the Shorewood Bank with intent to defraud the bank and the Mercantile Company, and made false entries in the books of the bank with intent so to defraud and to deceive the cashier and other officers of the bank and officers and agents appointed to examine into its affairs, by drawing the check of the Mercantile Company on the Shorewood Bank on June 6th when said company had insufficient funds to cover it, and sending it to the Marine Bank to the credit of the Shorewood Bank, and causing it to be presented to the Shorewood Bank on June 8th, and by causing a false entry of the debit against the Marine Bank to be made upon the books of the Shorewood Bank with such intent to deceive, knowing that the Marine Bank would not and could not enter on its books or authorize such debit until June 9th. Count 6, like Count 1, covers charges (a) and (b) as stated under Count 1.
While the transaction charged was connected with that of June 4th, and was a part of the scheme by which a fraud was perpetrated on the Shorewood Bank, if one was perpetrated,
What is said under Count 1 about intent to defraud being properly inferred, if it is so inferred, from the circumstances although denied by the defendant and no injury actually resulted to the bank, applies here. The circumstantial evidence of intent to defraud is much weaker here than that to support a finding of such Intent under Count 1, as only one day intervened between the entry of the debit on the Shorewood Bank’s books and the granting of credit by the Marine Bank, and Mr. Lindsay of the Marine Bank testified that the defendant talked with him over the telephone respecting the credit on June 8th and the defendant also so testified. The defendant doubtless knew that the credit would not be actually given until June 9th, as the note was dated as of that day, and the credit would not be given by the Marine Bank until the day of the date of the note, and if the note was received on the 8th by the Marine Bank it would not be received in time for entry on that day’s transactions and the credit would not be given until such entry was made. It seems probable that Mr. Lindsay promised on the 8th to accept the note and grant the credit, and that actual intent to defraud could hardly be inferred if this was the fact.
Intent to defraud the Mercantile Company is also covered by this count, but if intent to defraud the bank could not be justifiably inferred, then intent to defraud the Mercantile Company could not be. We would have difficulty in supporting the conviction under this count if the count covered only abstraction of funds with intent to defraud.
As to the false entry with intent to deceive, however, it seems plain that there was a technical violation of the statute in that regard. The debit slip filed with the Shorewood Bank was false, as credit had not in fact been given by the Marine'
(4) Count 7 charges that the defendant on June 8th made false entries in the books of the Shorewood Bank with intent to defraud the bank and the Deposit Company by making and filing the false deposit slip- to himself to reimburse himself for the amount theretofore paid by him upon his subscription for the stock of the Building Company, and made false entries with intent to deceive the cashier and officers of the bank and others authorized to examine into its affairs by filing the false debit slip against the Marine Bank and causing its entry of debit upon the books of the bank. ,
This count is limited to charging false entries on June 8th with intent to defraud and to deceive. The offense of making false entries on June 8th is charged in Count 6. The only differences between the false entry charged in these two counts is that in Count 6 the charge is of intent to defraud the bank and the Mercantile Company and in Count 7 it is of intent to defraud the bank and the Deposit Company, and in Court 6 the filing of the debit slip against the Marine Bank
This duplication of charging the offense of making false entries is a mere splitting of hairs. The filing of the debit slip and the two deposit slips was a single transaction. The entry of the two deposit slips offset the entry of the debit slip and put the bank’s books in balance. The entries having been made with intent to deceive, one of .the two alternative requisite intents, only one of which'is essential to constitute the offense, it is immaterial if they were also made with intent to defraud; and as it is immaterial if they were also made with intent to defraud, it is also immaterial if one entry was made to defraud the bank and the Deposit Company and the other with intent to defraud the bank and the Mercantile Company, Several offenses cannot be made, out of a single matter of false entry because it was made with several different intents, only one of which was necessary to create the offense. The situation is analogous to that' of a defendant being charged with murder of a person by stabbing him with a knife and by striking him on the head with a bludgeon, and he committed both acts while the person was alive, and either, act alone was sufficient to effect death eventually. . The defendant would not be guilty of two murders merely because he committed both acts. The conviction upon this count should be set aside.
(5) Count 8 charges that on June 8th the defendant, being president of the Shorewood Bank, wilfully .caused to be made false entries in the books of the bank with intent .to deceive any person authorized to examine into the affairs of the bank. That-this is a mere duplication, and is included in Count 7, appears from the discussion of that count. The conviction upon this count must be reversed.
(6) Counts 2, 5, and 10 may be treated together. They respectively charge that the defendant on June 4th, June 6th,
That obtaining credit by false pretenses does not fall within sec. 343.25 is inferentially supported by sec. 343.41, which makes the obtaining of credit by false representations under circumstances stated a separate offense. As said in Pepin v. State ex rel. Chambers, 217 Wis. 568, 259 N. W. 410, sec. 343.41 was designed to create a crime that did not exist under sec. 343.25. Where money is procured by reason of the credit given, the act may constitute a crime under both sections. Laev v. State, 152 Wis. 33, 139 N. W. 416. But if money is not received but only credit without money actually passing, as here, the offense, if any, is under the latter statute, and to constitute the offense under the latter statute, loss must result to the .one granting the credit. In
By the Court. — The judgment and sentences of the municipal court upon Counts 1 and 6 of the' indictment are affirmed; the judgment and sentences upon Counts, 2, 3, 5. 7, 8, and 10 of the indictment are reversed.