State v. Easton, 113 Iowa 516

State v. Easton

113 Iowa 516 | Iowa | 1901

Given, C. J.-

-I. On and for a long time prior to August 26, 1896, the defendant was the president and general manager of the Eirst National Bank of Decorah — a bank duly authorized to transact business at Decorah as a national bank, under the laws of congress. On said twenty-sixth day of August, 1896, the defendant received from John Erench on deposit in said bank $100 in money, for which he executed to Mr. Erench a certificate of deposit payable six months after date, with interest at 4 per cent. “No interest after maturity.” The bank was then open and transacting business in the usual manner and continued to do so until about November 10, 1896, when it was found to be insolvent and was put into the hands of a receiver. While the questions of the insolvency of the bank, and of defendant’s knowledge on that subject at the time this deposit was received, are in issue, the jury was fully warranted in finding that the bank was then insolvent, and that the defendant knew that fact when he received the deposit. The extent of the liabilities of the bank, the character of its assets, including a large liability against the defendant, and defendant’s ac*519tive control and management of the bank, leave no room for ■debate on these issues.

2 II. Appellant's counsel present two propositions, as follows: “First. Does the statute of Iowa prohibiting banks or their officers or, agents from accepting and receiving deposits when such banks, axe insolvent apply to national banks organized and doing busines under and in pursuance of the laws of the United States ? Second. If sections 1884 and 1885 of the Code be held to apply to national as well as state and private banks or bankers, then are they valid in so far as they apply to national banks organized and conducting business under the laws of congress ?” Section 1884, chapter 12, title 9, of the Code provides that “no bank, banking house, exchange broker, deposit office, firm, company, or corporation doing a banking * * " or deposit business shall, when insolvent, accept or receive on deposit * * * any money, bank bills, United States treasury notes, or currency,'' etc. Section 1885 provides 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 deposits, as •aforesaid, when insolvent, any ower, 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, or renew any certificate of deposit, as aforesaid, shall be guilty of a felony,” etc. Chapter 10 of said title 9 provides for the organization of savings banks, chapter 11 for the organization of state banks; and chapter 12, in addition to said section 1884 and 1885, provides how such banks shall be managed and controlled. Appellant insists that said sections 1884 and 1885 only apply to the banks provided for in said title 9. The language of said section includes many other than savings and state banks, and the construction contended for would exempt all these others from the prohibitions and penal*520ties of said sections, which would leave the public unprotected as against such frauds by brokers, private bankers, and others than savings and state banks that conduct a deposit business. These sections were originally enacted as chapter 153 of the Laws of Eighteenth General Assembly, and re-enacted in the Code, with slight changes, as a part of said chapter 12. They might more properly have been placed in the criminal statutes, but the fact of their re-enactment as part of chapter 12 does not warrant the restriction claimed. We are in no doubt but that the legislative intent is that said sections shall apply to all persons, corporations, and associations receiving deposits of money. See State v. Fields, 98 Iowa, 748.

3 III. Appellant contends in support of his second proposition that said sections 1884 and 1885 of the Code of Iowa are invalid as to national banks, in other words, they do not ajoply to national banks. The argument is that under the laws of congress such banks are authorized to receive deposits, and that, “where an act is authorized to be done by a law of the United States, such act is thereby withdrawn from the operation of the criminal laws of the state, unless otherwise expressly provided by congress, and that the performance of such act in pursuance of, and as authorized by, such law of the United States cannot be punished as an offense against any law of the state.” This-statement of the law is in substantial accord with the authorities, and the inquiry is whether the defendant was authorized by the laws of congress to do the act of which he has been convicted. This inquiry, we think, is directly answered in State v. Fields, supra. We understand appellant’s counsel to concede that the case is against their contention, but they insist that it is against the weight of authorities — especially certain cases decided since that opinion was rendered, namely, State v. Thomas, 173 U. S. 276 (19 Sup. Ct. Rep. 453, 43 L. Ed. 699), and In re Waite (D. C.) (81 Eed. Rep. 359). We do not find that this precise question has ever been *521passed upon by the supreme court of the United States — the only tribunal that may render a final determination of it. In the absence of such a decision, we follow the law announced in State v. Fields, without reviewing the authorities and reasons upon which it is based.

4 IV. One g-round of defendant’s motion to set aside the indictment was that Thomas Rice was examined before the grand jury without being sworn as required by law. Hr. Rice was foreman of the grand jury. He was sworn by one of the jurors, and testified only that the defendant had been president of the bank for many years. There had been no dispute as to this fact at any time, and we fail to see wherein the defendant was prejudiced by reason of Hr. Rice’s not being sworn as provided in sections 5254, 5255, and 5260 of the Code. This is not a ground for setting aside an indictment. Code, section 5319. The grounds prescribed in that section are exclusive of others. State v. Baughman, 111 Iowa, 71. Another ground of said motion is that certain exhibits before the grand jury as evidence were not returned with the indictment, as required by section 5280 of the Code. The exhibits referred to are said certificate of deposit and a receipt given by defendant to one Grow. French and Grow testified concerning these documents, but it does not appear that either document was before the grand jury. Tliere was no error in overruling the motion on either of these grounds.

5 *522‘6 *521V. A ground of demurrer to the indictment was, that it is indefinite and uncertain, and does not charge any offense with the required certainty. It is argued that the indictment fails to show whether the bank was an corporatoin, partnership, or name under which an individual was. doing business. The indictment charges that defendant was president of the bank known as the First National Bank of Decorah. “Construed in their usual acceptation in common language,” these words of the indictment show that his was an incorporated national bank. Code, sec*522tion 5287. As we construe said sections 1884 and 1885, the defendant’s guilt does not depend upon the character of the organization of the hank. Another ground of the demurrer was that the indictment charges two offenses, namely, the permitting, conniving at, and eneonraging the receipt and acceptance of the deposit, and also receiving the same. To re■ceive or accept a deposit, knowing the hank to he insolvent, is an offense; and to he accessory or permit or connive at re- ■ ceiving or accepting a deposit by another, knowing the hank to he insolvent, is also an offense. The indictment charges a receiving hy the defendant, and what is said as to his permitting, conniving at, and encouraging the deposit is not that it was given to another but to himself. The indictment does not charge two offenses, for that it does not charge that defendant permitted, connived at, or encouraged tire giving of the deposit to another. There "was no error in overruling the demurrer on these grounds.

7 8 VI. The court admitted in evidence, over defendant’s ■objection, hooks of the hank, as hearing upon the question of insolvency, and the defendant’s knowledge thereof. Defendant insists that these were not hooks of account or of original entries, and therefore not admissible. They were not admitted as hooks of account, and wore not offered as such. They were hooks kept under the supervision of the defendant to show the condition of the hank, and the entries therein were accessible to and known by him, therefore they were admissible not only to- show the condition of the bank, but also defendant’s knowledge as to it's condition. The authorities cited as to the rule applicable to hooks of account are not in point. It is also contended that the court erred in admitting the evidence of the receiver and others as to the value'of certain notes held by the hank. The condition of the bank depends upon the value of its assets, and there was no better way óf proving the value of these notes. We find no error in the admission of evidence.

*523"9 VII. Appellant’s remaining contention is that the •court erred in refusing certain of the instructions aslced, and in giving the sixteenth paragraph of the charge. In so far as those asked were correct, they were fully covered by those given. Said sixteenth instruction relates to a claim held by the bank, and was really favorable to the defendant. We do not find any error in the giving or refusing instructions. It follows from the conclusions we have reached that the judgment of the district court must be aeeirmed.