130 Iowa 678 | Iowa | 1906
Section 1884 of the Code prohibits the receipt of deposits by an insolvent bank and others engaged in like business, and section 1885 fixes the penalty for a violation of the preceding section. So far as it is material to our present inquiry section 1885 is as follows: “If any such bank, banking house, exchange broker, deposit office, firm, company, corporation or person shall receive or accept on deposit any such deposit, as aforesaid, when insolvent, any owner, officer, director, cashier, manager, member or person knowing of such insolvency who shall knowingly receive or accept, be accessory, or permit, or connive at receiving or accepting on deposit therein, or thereby, any such deposits,” etc., shall be guilty of felony, etc.
After calling the jury’s attention to the sections of the statute referred to, the court instructed as follows: “ The material points to be considered by you-and necessary to be proven by the state beyond a reasonable doubt are; (1) That the defendant was engaged in the business of banking and receiving deposits in the name of the Citizens’ Bank at Mt. Ayr, Ringgold county, Io-wa; (2) that while so engaged in the banking or deposit business the defendant, on January 14, 1904, knowingly received or accepted for deposit for the Citizens’ Bank a check, the property of J. II.
No. 6. The defendant has offered evidence for the purpose of showing that the defendant and the said Citizens’ Bank were in truth and fact solvent on January 14, 1904. You are instructed that if you find said defendant and the Citizens’ Bank were on said date in fact solvent as defined in these instructions, then it is your duty to acquit the defendant.
Evidence has also been introduced on the part of the defendant for the purpose of showing that even if said defendant and the Citizens’ Bank were in fact insolvent, yet that the defendant did not know or believe that he and the bank were insolvent at the time charged in the indictment, and has offered evidence as to the value of the assets of the defendants and the Citizens’ Bank and of the financial condition and responsibility of certain persons largely indebted to the defendant and Citizens’ Bank, for the purpose of showing the solvency of the defendant and the Citizens’ Bank and also that the defendant had a right to believe and did believe that he and the Citizens’ Bank were solvent January 14, 1904.
*681 You are instructed to consider all the evidence offered, by the state and the defendant on this issue, and if you find from the evidence that the Citizens’ Bank and the defendant, Day Dunning, were in truth and in fact solvent as defined in these instructions, or if you find from the evidence that the defendant from all the facts and circumstances as shown in the evidence as a reasonable and prudent man had a right to believe and did believe that he and the Citizens’ Bank were solvent, as defined in these instructions, on January 14, 1904, then you should acquit him.
The precise point is that the instruction, authorized a conviction if the jury should find that the defendant as a reasonable and prudent man ought to have known that he and his bank were insolvent when the particular deposit in question was received. In other words, that it permittted a conviction if it were found that the defendant had been negligent in the conduct of his business as a banker. Notwithstanding the positive declarations of the other instruction that the deposit must have been received when the bank and the defendant were in fact insolvent, and that it must be shown that the defendant then knew of said insolvency, we are constrained to hold that there was prejudicial error in instructing: “ Or if you find from the evidence that the defendant from all the facts and circumstances as shown in the evidence as a reasonable and prudent man had a right to believe and did believe that he and the Citizens’ Bank were solvent, . . . then you should acquit him.” To convict under this statute, the state must prove insolvency and the defendant’s actual knowledge thereof. No presumptions against the defendant are to be indulged. Unlike the statutes of some of the states the fact of insolvency raises no presumption that the defendant knew thereof when the deposit was received, nor is his want of care material. Thus in Illinois it is provided that the receipt of deposits when the hanker or bank is insolvent “ whereby the deposit so made shall be lost to the depositor ” is a criminal act; and it is further provided “ that the failure, suspension, or in
Indeed, the state seems to concede that such should be the rule under our own statute, and bases its contention for an affirmance on the ground that the language complained of was not prejudicial to the defendant or in conflict with the other quoted instruction. It will be noticed, however, that the sixth instruction called specific attention to the two defenses interposed: Eirst, that the defendant and the bank were in fact solvent when the deposit -was received; and, second, that even if they were then insolvent in fact the defendant did not know of such insolvency. These were both defenses under the statute, and it was proper for the court to instruct thereon, and to tell the jury to consider the evidence offered for and against said defenses, and further that if it found that the defendant and the bank were in truth and in fact solvent when the deposit was received there could be no conviction. But when the question of the defendant’s knowledge was specifically considered it was said in effect
If the jury might have taken this view of the case, the error was clearly prejudicial to the defendant, and our duty in the matter is plain.
Reversed and remanded.