*1 plaintiff they who testified had had intercourse witnesses during the of 1952. summer denying defendant a new trial. assigned
The error is in evidence; the contrary to the Appellant verdict contends the passion plaintiff has failed result of prejudice, and that carry proof. the burden of new trial granting of parties
All concede that only rests sotínd discretion of the trial court a clear abuse thereof will court interfere. Assuming that presents question. purely
The case a fact her, that fact would three men did intercourse with have fact which the of the child—a defendant, if the father excuse the it plaintiff, as if believed this record could find under 188, 56 N.W. Baker, 89 Iowa have done. See State must affirmed. trial court is judgment of the Finding error the no —Affirmed.
All concur. Justices appellee. L. appellant, Haesemeyer, v. W. Iowa,
No. (Reported 755) in 79 N.W.2d *3 11, 1956.
December Raphael R. R. Attorney General, Countryman, Dayton Dvorak, Attorney King, General, Assistant Charles of Marshall- Robertson, Marshalltown, town, County Attorney, and D. J. Special appellant. Prosecutor, for Rapids, John
Donnelly, Lynch Dallas, Lynch, & of Cedar Marshalltown, appellee. L. Mowry, of for Defendant, executive president active Garfield, J. in the bank, acquitted officer of a of embezzlement state The State 528.6, Codes, claimed violation of section appealed and some of the instructions has contends were erroneous. judgment finality
I. The respect is a dis charge However, of defendant. appeal we will entertain an presents questions State where of law the determination of guide will be beneficial or a to trial courts in the future. 793.20; See Code section Hill, N.W.2d 58, appeal presents citations. We think this such questions. II. The indictment as amended reads: grand jury “The *# # county of Marshall accuse W. L. Haesemeyer of the
crime of excessive to an officer committed as follows: The Haesemeyer said W. L. on the day 10th of October, in the county aforesaid, acting and while president of the Central Bank, State Center, Iowa, did use or himself, borrow * * * * * * directly or indirectly, money belonging to said in the amount of $45,000; being in per excess of ten * * * cent of capital and surplus of said bank without such loan first being approved, in writing, a majority of the board of directors of said bank. In violation of Section 528.6, Code (1954).” of Iowa *4 provides: Code section 528.6 “Loans to employees or officers shall in * * * —use of funds. No officer of the bank any manner directly or indirectly use deposits its funds or any part thereof, except for regular business of bank, transactions no loans shall be any made to of them except upon ex- press order of the board directors, of made in the absence of the applicant, duly entered in the records of the proceedings board ## # * * * “No active any executive officer of bank, state shall * ** money any indirectly, himself, directly or for
use or borrow * * * ex- officer,in an which he is any bank of belonging to state * * *. bank surplus of such capital and of the per of ten cent cess they officers executive active are made such loans “Where directors, of the board majority of by a approved first be must officer executive active writing and the in approval to be said * * *. made, voting. are loans to whom said own shall officer any active executive “Provided, if such that a loan to corporation any of other majority stock of the purpose of'this for the considered be corporation shall him.” as a loan to * * * of violating any says “Any officer 528.7 such Section * * * guilty of em- 528.6 shall be provisions [s] Evidently because stated. punished as therein bezzlement” jury, con- court, in its instructions provision the of this rather than charging embezzlement indictment as strued indictment officer” as the to an loans crime of excessive “the give it no further and we of this complaint is made No states. attention. only part that the of section
Instruction states effect para- provision applicable to is'the in the second 528.6 the case any officer of state bank graph “No active executive thereof: * * * any directly indirectly, himself, borrow for shall use or * * * which he is any money belonging to * * * state such officer, bank; excess [*] * of ten per cent capital surplus objected ground The State to instruction on the prohibition first should also have been instructed as to the requirement section 528.6 and the thereof that contains by a ma approved made to active executive must first be officers alleges indictment loan jority of the board of directors. The approval. board made to himself was without such defendant regard We clear the failure to instruct are court’s prej proper and did not requirement of section 528.6 was to this of borrow way. was accused Defendant udice the State money, being in excess of ing for of the bank’s himself surplus. repre per capital The loan was ten cent of the signed by Martin promissory amount, note sented It the same note referred to to the bank. Schaper, payable *5 y. Haesemeyer, N.W.2d The bank’s State surplus $175,000. Obviously the loan ex- capital totaled far thereof. per ceeded ten cent jury 528.6 to is an abso- part of submitted
The borrowing against an executive officer’s prohibition lute active capital per of an of ten cent from the bank amount excess authority approve to such have no surplus. The directors offi- 528.6 loans to such requirement of excess loan. The plainly by the directors approved cers first be board of must absolutely prohibited i.e., applies only to loans not — surplus. approval per capital ten excess of cent application prop- requirement of 528.6 no here and court has Browning erly State, See ignored it in its instructions. 308, 247 847, 849; People Fla. 262 Mich. Lewis, 133 So. N.W. 154. prohibition The first of section 528.6 which the con- State * * *
tends jury should have been is, submitted to the “No officer directly the bank shall in indirectly manner or its use deposits any part thereof, funds or except regular ** business transactions of the bank There is substantial provision. evidence of of this However, violation we think it proper question not to submit such de- because charged prohibition fendant with was not a violation of this but only having part violated the 528.6 instruction 6 submitted the jury. nothing
There is in the indictment as returned or as amended which charges defendant used the bank’s funds deposits for purpose other regular than the business transactions bank. While the charges indictment a violation of 528.6, the means and manner of such expressly violation are i.e., stated — that defendant used or borrowed for himself, directly or indi- rectly, $45,000 of money, bank’s being per excess of ten capital cent of surplus. As previously explained, the designates indictment the crime as “excessive loans to an officer.” may It be required the State was not allege the means which the offense was committed. Code section 773.10. But hav- ing so, done had the prove burden to defendant’s guilt sub- stantially alleged. v. Schilling, 250 *6 v. 895; Wright 250 157, 217 N.W. 588; Essex, v. Iowa State A.L.R, 474, 477. 123 335, 499, 91 P.2d
People, 104 Colo. 262, Informations, section and 42 Indictments C.J.S., ways, in various committed may be an offense states: “Where in the committed have been it to the must establish evidence charged indictment.” mode the particulars supplemental bill
The State filed a of Code it the indictment. See particulars bill before amended of supplemental of filed another bill section 773.5. the State Later twenty-six containing thereto all particulars and amendment 23 Paragraph does state funds paragraphs. numbered transaction of the bank regular a business were not used as in the of proceeds interest had a beneficial because defendant Schaper, and signed by Martin although it was $45,000 note, reasons. other particulars con The State seems to feel the bill be of should part of But sidered the indictment or amendment thereto. change we it is to be so did think not treated. bill not charged Wright People, enlarge in the indictment. v. the offense supra, 335, 499, 474, 104 Colo. 91 123 A.L.R. and cita 477, P.2d Johnson, 45, 386, v. tions; People 388; Ill. 1 N.E.2d Com 363 Greer, Sacco, 369, 839; 151 monwealth v. 255 N.E. Mass. State 276, 325, 922; Davis, 238 917, N.C. 77 State v. 39 R.I. S.E.2d 563, 568, 569; Am. Jur., 97 A. Ann. 1918C 27 Indict Cas. C.J.S., 42 Informations, 117; Indict ments sections 156d, Informations, pages 1101-2. ments and section in support jury In contention the should have been of its contains, prohibition on the section 528.6 the State structed first 523; 266 v. Wil N.W. Stack, cites State Johnson, 212 Iowa 571; State v. bourn, N.W. precedents con nothing in these 522. We find trary expressed. herein views supra, upholds sufficiency Stack, on demurrer charged of breaking entering an indictment which a store Dubuque at a what Code location violation of is now certain 708.8, although allege breaking section it did not and enter- ing any public Had the were “with intent to commit offense.” charged breaking entering were with intent indictment to think been larceny commit we could not have convicted Stack proof rape, although on would lie intended commit either be analyze 708.8. We other decisions violation need phase case. the State cites on merely charged violation of If here had the indictment specifying the means which was com- section 528'.6 without position urge the conten- mitted, might be in the State better imply However, do not mean to defend- now we tion considered. if particulars a bill of he re- ant would not then be entitled to 773.5; annotation A.L.R.2d quested it. Code section assigns III. in giving The State error paragraph the first of instruction 15 which told if the loaned to a known Aurora Cattle Account then not, meaning defendant did within the 528.6, use *7 himself, directly indirectly, any money borrow for or belonging borrowing to the bank because then the use and was a part- separate entity nership which a and not was defendant him- 11 day self. Instruction states in effect that on the partnership note made a existed under the name Aurora was Schaper (whose Martin Cattle Account and defendant and name signed note) the members were thereof. paragraph second instruction 15 told the if, hand, on the other defendant utilized Schaper a mere in- as termediary to enable defendant to use or borrow the $45,000 from if the loan was in fact made to defendant and jointly Schaper to enable them use both to funds them- find selves then it should defendant used or borrowed indirect^ money belonging to the bank. Although testify, defendant did not apparent is his de- charged fense to the has been that crime the loan was made to a composed of partnership himself and Schaper Iowa a partnership regarded entity is as distinct from its members. held have several times that a We partnership is an en tity Among its members. distinct from such decisions are: Rubio Co., v. Farm Prod. 240 547, Acme Iowa 556, Sav. Bk. 37 N.W.2d 459; 16, 21, 9 A.L.R.2d Soursos v. Mason City, 230 157, Iowa (“This 807, 808 158, 296 N.W. is too well require settled dis cussion.”) Knee, Trust v. 222 ; 988, Bankers Co. Iowa 993, 270 Pierson, 837, 204 438; 842, Iowa 43, N.W. 216 N.W. 46; Wiersma, 551, 552, 185 Iowa 170 4 Jensen v. N.W. A.L.R. 162 Smith-Jaycox 183
298; Pipe Co., National Co. v. Lbr. Sewer Iowa tendency adopt growing seems to be a of courts to
There long prevailed in partnership which has Iowa that a is the view Jur., legal entity from its members. 40 Am. Partner- a distinct ship, section 18. 528.6 is a section
Since criminal statute it is to strictly be However, it construed. should be construed strictly so as to legislature. intention of the defeat the obvious Hill, 405, 407, 408, 58, 59, 57 N.W.2d Iowa and citations; State v. Han 147, 55 sen, 923, 924, N.W.2d and citations; State 599, 602, 603, Dahnke, N.W.2d 555; 7 Am. 367; C.J.S., Jur., Banks, Banks and Banking, section 148a, page 279.
7 Am. Jur., Banks, 368, states: “In the absence of expressly controlling matter, a statute whether a loan which lawfully may cannot made to an or dix-ectorof a bank be officer partnership made to a be officer director is a depends upon partnership regarded member whether the is as legal entity composing distinct from the members it. If the pax'tnership regarded legal entity may is lawfully as a loan be regarded partnership made to it. If the is not an entity, permitting approving of such loan criminally officer's are jurisdictions In some statutes have been expressly liable. enacted making of loans to a x'egulating which a di- or officer of the bank is interested.” rector Substantially the same statement found in annotation 90 *8 509, Pielsticker, 419, 51, A.L.R. 118 Neb. 225 N.W. prohibit holds a statute similar to our section 528.6 not does by a borrowing partnership from bank a of the bank offi member, pai-tnership exxtity a a cer is since is an distinct from its members.
People Knapp, 206 Y. N. N.E. 843, Ann. 1914B holds an partnership Cas. excess loan to a of which the banker a member an is is indirect loan to the banker. The opinion poixits partnership regarded -out a not entity is as an Furdhex', prohibited York. the Yox'k New New statute such ex- “ ” any person, company, corporation cess ‘loans to or firm.’ question seem the loaxi in Thus it would was a clear violation of partnership con- a regardless whether or not of the statute entity. sidered cites. the State precedents the other
We have considered question a loan to a whether involve the of them do not Several of a is a violation a member the banker is partnership of which are not criminal cases of them 528.6. Some like section statute principles. Some part by common-law governed and are partnership a regard do are cited courts whose decisions Utah al- Texas and least of entity. is true at This a distinct cited at least the cases In of. of several though not Oklahoma. by the was used the bank money from borrowed part of the of a third in the name made the loan was personally and banker subterfuge. person as a mere entity regard partnership a as an we are not
Since we 15 is paragraph first of instruction an erroneous persuaded the may be that conduct was of law. It well defendant’s statement enlarged morally Perhaps statute should be indefensible. the is member. prohibit partnership a loan to a of which banker a by legislature and not us under If done so this should be guise of construction. if a party Of or other third course is used subterfuge purpose borrowing as a from money a bank reality for an officer of bank, which is there is an indirect borrowing agree upon him. The authorities seem to prop and defendant concedes as paragraph osition much. The second thought. embodies this instruction The conclusion we have reached finds some support in the 528.6, quoted, before last sentence and in section 528.14. any “if provision former is: such active executive officer majority a of the stock of corporation shall own other a loan corporation shall be considered for purpose to that of this him.” legislature as a loan to Thus the expressly- pro- corporation to a in which hibited excess the banker owns prohibit But it did not majority a of the stock. so such loans to a partnership of which he is member. The effect of sustaining complaint against instruction 15 would the State’s be to read just language quoted, following “other corporation”, into the partnership” language “or be a member of and, following “or corporation”, partnership.” the words “that *9 long 528.14 too set It Section. is to out full. limits the permissible any person, corporation, liabilities to “bank including company, money borrowed, or firm for in the liabilities company of a or firm the members liabilities several * * thereof The contains two other references lia to any person, corporation, company pro or firm bilities of and one regarding obligations any person, copartner vision certain “of # * association, corporation ship, charged violating 528.6 defendant Section was It from language that in 528.14. is clear this contains no like as familiar with such terms legislature latter section the was recognized It a copartnership. seems to have company, firm to a firm to an individual loans between loans distinction to conclude that if the lawmakers partnership. It is reasonable prohibit partner- a excess to by 528.6 to intended a officer of the was mem- an active executive ship of which express language to appropriate such would have used ber it Pielsticker, supra, 419, 225 N.W. 118 Neb. intent. See State 51, 53. seeking meaning of
In section 528.6 in respect controversy proper to consider is all of that statute and also Board of Trustees Farmers Drain. 528.14. Dist. v. Iowa Nat Council, Resources ural NW.2d 802, and citations. complains of
IV. The instructions a as especially whole, inclusive, unduly numbers empha was a sizing the that defendant member partnership defense of a Schaper and of himself and that the loan composed was partnership rather than defendant. made complaint merit. analyze has We shall We think the say Suffice to that these instructions. three instructions detail no than five times in all less that a jury was told members, from entity thought distinct its legal was is a jury expressly told twice upon. enlarged indirectly borrowing a partnership twice not a told at least borrowing a member thereof. While or indirect the in- direct by repetition least emphasize at defendant’s claim the structions (in was told but partnership, once was to loan
165 15) paragraph second of No. that if fact the loan was made Sehaper jointly defendant and there would be a to violation statute. jury 14 “The
Instruction informed the fact to be determined money partnership Sehaper is who borrowed the indi- —the vidually.” clearly implies partnership that either the This thereby Sehaper $45,000, ruling borrowed the out the State’s contention, support in evidence, which has substantial the that Sehaper as a matter of fact defendant were the real borrow- ers. frequently
We have instructions pointed out should not give emphasis any particular phase of undue to law, case side; favorable to either correct statements if repeated may constitute point emphasis, to the of such undue 999, 990, 242 Holsinger, reversible error. Iowa See Evans v. 1000, Williams, 48 250, 255, 1434; N.W.2d A.L.R.2d v. 28 State Proost, 838, 519; 238 Iowa 28 225 Iowa 845, 514, N.W.2d State v. 1109, Iowa 628, 635-637, Grohe, 223 167; 281 N.W. Vance v. 1118, R. & Kelly Chicago, 274 I. 902, 332; N.W. 116 A.L.R. v. Rep. Ry. 277, P. Am. St. Co., 273, 536, 114 N.W. 128 195; Jur., Trial, C.J.S., Trial, 340a; 88 53 section Am. 1151, 78 1139, 568. Iowa Co., See also v. Vilas & 247 Soreide 41, N.W.2d
V. jury Instruction 11 told the that on the date $45,000 loan was partnership made a existed between defendant and Sehaper (whose signed note). name was The State con- partnership tends existence of the disputed was a question fact jury should have been to left to determine. There is good deal of evidence that defendant denied to bank examiners there him partnership Sehaper. was ever between legal proposition for which the State contends is elementary. of course must not Instructions state or assume dispute. fact province exists when the matter is It is the juries, courts, disputed decide fact questions jury trials. Hubbard, 241, 218 250 v. Iowa State 253 N.W. 834; Dunne, 1185, 1188-1191, 234 15 Iowa N.W.2d C.J.S., Trial, 280a; 298, 299; 53 Am. Jur., Trial, 88 sec Cotton, 609, 639, tion 605. also Iowa See N.W.2d 880, 896, 897. think, however, position the State is not in
We
make
against
par
11. The first bill of
complaint
instruction
alleges
filed
the date of
loan a
that on
ticulars it
Schaper.
partnership
composed
existed
defendant and
Since
justified
telling
allegation the court was
the State made this
to follow
This would seem
existed.
Rey
makes it.
allegation
from rule that an
binds the one who
citations;
648, 284 N.W.
Aller,
nolds
49, 54.
697, 706, N.W.2d
Dearmin, 246 Iowa
Lauman v.
point
Also in
specifications
are decisions to the effect
*11
particulars
proof
in a bill of
restrict
specified.
the matters
Schuling, supra,
588;
Albert,
Commonwealth v.
307 Mass.
The State another error but we deem unnecessary upon appeal pass upon the assignment. pointed
For the error in out Division judg- IV hereof the ment reversed but the not cause is remanded.-—Reversed.
Bliss, Oliver, Smith, Larson, and. JJ., concur. Peterson, J., J., J., C. Hays, Thompson, Wennerstrum, concur part in part. and dissent agree J. (dissenting) legal with the Hays, announce- —I
ments made I, Divisions II III. I pass would refuse to upon assigned the error presenting Division IV as legal question the determination would be beneficial or a guide to trial courts in passed upon the future. Even if I do not feel it warrants a reversal. I would affirm.
Thompson, J.,C. J., join this dissent. Wennerstrum,