210 N.W. 988 | S.D. | 1926
Appellant, who was cashier of the First State Bank of Elkton, Was convicted of a violation of sections 8980 and 8981, Code of 1919. Section 8980 provides;
“In no case shall the total liabilities of the several stockholders of any hank, including any and all liabilities * * * to such bank, exceed. 50% of the paid up capital of such hank.”
And section 8981 provides that:
“A.ny officer, director or employe of any bank * * * who shall knowingly permit shareholders of such bank to at any one time become indebted to such bank in a total sum exceeding fifty per cent of the paid-up capital of such bank, as- prescribed by the preceding section, shall be deemed guilty of a felony.”
The paid-up capital of the said bank was $20,000. The bank suspended and was taken over 'by the superintendent of banks for liquidation. Among the assets of the bank were found notes signed by the various stockholders, aggregating considerably more than 50 per cent of the paid-up capital of the bank. The information charges that the indebtedness evidenced by these notes was for funds of the bank “loaned and advanced” by appellant to said stockholders, whereas the evidence shows that said
It was not necessary to allege in the information that the indebtedness had been created by “loaning or advancing the funds of the bank.” The offense is committed by knowingly permitting the shareholders to become indebted 'to. the bank in sums aggregating more than 50 per cent of the bank’s paid-up capital. It is not material whether the indebtedness is for cash advanced, notes discounted, for property sold', or for notes charged) off and surrendered, even though the notes of. the shareholders are more valuable than the notes so surrendered. Therefore the allegation in the information that the notes in question were taken for funds loaned and advanced is mere surplusage. As a general rule, it is sufficient, in charging a statutory offense, to follow, the language of the statute. State v. Heck, 23 Minn. 549, citing 1 Bishop Crim Proc., § 359 et seq.
We are aware of the long line of decisions to- the effect that, where a crime is charged, and the manner of commission is set out, proof that it was committed in some other manner constitutes a fatal variance. But, conceding a variance to exist in this case, it is not necessarily fatal. Our statute (section- 4936) provides that:
“On the trial of an indictment or information exceptions may be taken by the defendant to the decision- of the court upon a matter of law by which his substantial rights are prejudiced, and not otherwise, in any of the following cases: * * ’
“3. In admitting or rejecting witnesses or evidence, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue.”
And section 4945 provides that:
*568 “The court in which a trial has been had upon an issue of fact has power to grant a new trial, when a verdict has been rendered against the defendant by which his substantial rights have been prejudiced, upon his application in the following cases only: * * *
“6. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial.
“7. When the verdict is contrary to the law or evidence.”
The purport of these two sections of the law is that it is only where the rights of the appellant have been prejudiced that a new trial will be granted. In this case it is not shown that appellant’s rights were, in anywise prejudiced by the variance complained of; therefore it does not warrant a new trial.
One of the notes evidencing indebtedness by a stockholder to the bank is executed by a corporation, and it is contended by appellant that it is not shown that the president of the corporation, who executed the note, had any authority to bind the corporation. This question might be serious if it were material. But it is not material, because other notes, the validity of which is not questioned, aggregate more than 50 per cent of the paid-up capital of the bank. This note may be entirely disregarded, and still the indebtedness of the stockholders is sufficient to constitute the offense charged.
It is not shown that the rights of the appellant were in anywise prejudiced by any of the matters complained of, or that he did not have a .fair trial.
The judgment and order appealed from are affirmed.
