State v. McPherson

139 N.W. 368 | S.D. | 1913

McCOY, P. J.

In this Case defendants were jointly indicted by a grand jury of Meade county charged with the offense of allowing and permitting shareholders of a bank to become indebted thereto at one time in excess of 50 per cent, of the paid-up capital stock of such bank, contrary to the provisions of sections 29 and 30 of chapter 222, Laws of 1909, and which indictment in substance was as follows: “The grand jurors of the state of South Dakota, within and for the county of Meade, Eighth judicial circuit, duly and legally impaneled, charged, and sworn according to law, in the name of and by the authority of the state of South Dakota, upon their oaths present: That Donald A. McPherson, Henry O. Anderson, -Henry E. Perkins-, Charles Francis, and Frank M. Stewart, late of said county, Yoemen, on the rst day of January, in the year of our Lord one thousand nine hundred and ten, at and in the county of Meade, and state of- South D'akota, aforesaid, within, the jurisdiction of this court, then and there being, were then and there officers, respectively, of the Meade County Bank of Sturgis, a banking corporation, duly organized, existing and authorized to transact a banking business under and by virtue of the law's of the state of South Dakota, that is to say, Donald A. McPherson at the time and place aforesaid was then and there president an'd director of said bank aforesaid, and the said Henry O. Anderson was then and there at the time and place aforesaid vice president and director of said bank aforesaid, and the said Plenry F. Perkins, at the time and place aforesaid, was then and there cashier of the said bank aforesaid, and the said Charles Francis was then and there at the time and place aforesaid a director of said bank aforesaid, and the said Frank M. Stewart, at the time and place aforesaid, Was. then and there a director of said bank aforesaid, and which said bank aforesaid was then and there transacting a banking business at Stur-gis, in the said county and state aforesaid, and did then and there willfully, unlawfully, knowingly, and feloniously permit and allow Donald A. McPherson, S.amue G. Sheffield, Henry E. Perkins, Frank M. Stewart, and Samuel G. Sheffield and Frank M. Stewart, co-partners as Sheffield & Stewart, who were then and there shareholders of and in the Meade County Bank of Sturgis, a, banking corporation, as aforesaid, to at one time, that is to say, on Saturday, the 1st day of January, A. D. 1910, to become indebted to the Meade County Bank of Sturgis, a banking corporation, as aforesaid, in the sum' of fifty thousand and eight hundred forty-nine and 50-100 ($50,849.50) dollars in the manner following: That is to say, that in the county and state aforesaid, at the time and place aforesaid, the said Donald A. McPherson was then and there permitted and allowed to become indebted to the said bank aforesaid in the sum of five thousand, nine hundred forty-nine and 50-100 ($5,949.50) dollars, and the said Samuel Q. Sheffield, at the time and place aforesaid, was then and there permitted and allowed to become indebted to the said bank aforesaid, in the sum of ten thousand, seven hundred ($10,-700) dollars, and the said Henry E. Perkins, at the time and place aforesaid, was then and there permitted and allowed to become indebted to> the bank aforesaid in the sum of twelve hundred ($1,200) dollars, and the said Frank M. Stewart, at the time and place aforesaid, was then and there permitted and allowed tO' become indebted to the said bank aforesaid in the sum of fifteen thousand, five hundred ($15,500) dollars, and the said Frank M. Stewart and the said Samuel G. Sheffield, copartners as Sheffield & Stewart, .were then and there permitted and allowed at the time and place aforesaid to become indebted to the said bank aforesaid in the sum of five thousand ($5,000) dollars, all of which sums aforesaid, were, as aforesaid, permitted and allowed to be borrowed by the said officers aforesaid, then and there at the time and place aforesaid, ¡being a total sum exceeding fifty (50) per cent, of the paid-up capital of the Meade County Bank of Sturgis, a banking corporation, as aforesaid, which. said • bank aforesaid then and there at the time of said indebtedness aforesaid then and there had a paid-up capital of fifty thousand ($50,000) dollars, all of which said indebtedness aforesaid was not then and there discount of bills of exchange drawn in good faith against actually existing values, and was not then and there the discount of com1 mercial paper actually owned 'by the shareholders aforesaid, and said shareholders were not then and there negotiating the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of South Dakota.” To which indictment the defendant Frank M. Stewart interposed a separate demurrer upon, the following grounds : “ (1) That said indictment does not substantially conform to the requirements of the 'Code of Criminal Procedure for the state of South Dakota, in that it does not contain a statement of the facts constituting the alleged offense in ordinary and concise ! language, and in such manner as to enable a person of common understanding to know what is intended. The said indictment is not direct and certain as to the offense charged, nor the particular circumstances of the offense charged, though the particular circumstances thereof are necessary to constitute a complete offense, and said indictment is indirect and incomplete in such regard. (2) That more than one offense is charged in s'aid indictment. (3) That the facts stated in said indictment do not constitute a public offense.” The court sustained the demurrer, and, omitting recitals, caused to be entered the following' order and- final judgment; “It is ordered and adjudged that said demurrer be and the same hereby is sustained, and it is ordered that said defendant be and hereby is dismissed and discharged of the said indictment.” To 'the said ruling of the court and the entry of judgment sustaining s'aid demurrer the state duly excepted, and now, on appeal, specifies, and urges such ruling and judgment as error.

It is asserted .by appellant in the brief that the trial court sustained the said demurrer on the sole ground that chapter 222, Laws of 1909, is unconstitutional and void, and in conflict with section 2i, art. 3, State 'Constitution. We are of the opinion that the record does not show upon what grounds the demurrer was sustained. We are also of the opinion that none of the grounds of demurrer to said indictment are well taken; but that said indictment sufficiently charges a public offense under sections 29 and 30 of said chapter 2.2,2.

[1] It is the contention of respondent that the title of the legislative act (chapter 222, Laws of 1909) is in conflict with section 21, art. 3, State Constitution, in that such title is not sufficiently broad in its terms to cover or include the provisions of sections 29 and 30 of said act. Section 21, art. 3, provides that no law shall embrace more than one subject, which shall be expressed in its title. The specific contention is that the subject of criminal enactment in relation to the banking business is not included within the title of said act. The title of chapter 222 is as follows: “An act to revise the laws authorizing the business of banking, provide for the organization and- control of banks, and to establish a banking department for the supervision of such business.” It is conceded by respondent that if the title to this act had been general, such as “an act to regulate the business of banking,” it would have been sufficient to carry the penal provisions of said sections, but, inasmuch as the title is specific in its nature, it is contended .that it will not carry such penal provsions, that it was not the legislative intent, as indicated by said title, to create any new penal offenses, but only to revise the old laws already their existing relating to the authorization of the banking business, and to control and supervise banks so authorized by means of a banking department, and not by means of penal enactments. The first clause of the title in question, “to revise the laws authorizing- the business of banking,” clearly relates to the old laws already existing prior .to -such enactment; but the second clause, “provide for the organization and control of banks,” clearly indicates new legislation on the subject of banking. This second clause of the title is very general, and has broad scope, and is not qualified in any particular. There is no qualification of the scope of the second clause by .the wording or substance of either the first or third clauses of the title. The term, “control of hanks,” could reasonably mean nothing. other than the control of the hanking business. The control of banks is nothing more or less than control of the banking 'business. The sole and only subject embraced in ¡the said act is the “business of banking,” and which provides for the organization, control, and supervision of banks, and which subject is clearly expressed in the title with more particularity than was really necessary, as to organize, to control, and to supervise are only subdivisions and component parts of the one general subject of banking business. “To regulate” and “to control” in the sense in which the term “to control” is used in the title of .the act in question are synonymous or interchangeable terms. 34 Cyc. 1029; 9 Cyc. 811; Bryne v. Drain, 127 Cal. 663, 60 Pac. 433; 2 Words & Phrases,, 1549; 7 Words & Phrases, 6041; Webster’s Dictionary (1911 Ed.). “To control,” as defined in the foregoing authorities, means to check or restrain. To control a business does not necessarily imply that such business is unlawful, but that -in some particulars it should be checked or restrained •within specified limits. What better method of controlling — -that is, checking and restraining loans made unlawfully to officers and shareholders of banks — for the protection of depositors could be made than by prohibiting such loans by penal enactment? We are of the opinion that the provisions of said sections are very appropriate and clearly within the scope and meaning of that part of the title of said act ,tO' “provide for the organization and control of banks.” The title of an act fairly expressing the general subject covers provision's thereof for all proper means and instrumentalities which may or will facilitate the accomplishment or enforcement of the purpose expressed, such, for instance, as a provision prohibiting violations of the act, or prescribing a penalty or other punishment for such violation. 26 Am. & Eng. Ency. 588; State v. Morgan, 2 S. D. 32, 48 N. W. 314; State v. Becker, 3 S. D. 29, 51 N. W. 1018; Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121; State v. Children’s Home 10 N. D. 493, 88 N. W. 273.

[2] It is also contended by respondent that the indictment is bad for duplicity, in that more than one offense is charged therein. It will be observed that it is alleged that the defendants McPherson, Anderson,. Perkins, Francis, and Stewart are directors of the Meade County Bank of Sturgis, a banking corporation, and that said defendants did willfully, unlawfully, knowingly,, and feloniously permit and allow the said McPherson, Perkins, Stewart, and one Sheffield and Sheffield & 'Stewart, shareholders of said bank, to at one time — that is to' say, on Saturday, the 1st day of January, 1910 — to become indebted tO' said bank in-the sum of $•50,849.50 in the manner following: Said McPherson became so indebted in the sum of $5,949.50; said Sheffield in the sum of $10,700; said Perkins in the sum of $1,200; said Stewart in the sum of $15,500; and said Sheffield & Stewart in the sum of $5,000; and, being a total sum in excess of 50 per cent, of the paid-up capital of said bank, the paid-up capital of said bank then being $50,000. If the allegation had been that said loans were made at different times, then there would be some force in respondent’s contention, as all loans made for amount under the prohibited per cent, would not constitute 'an offense, and each separate loan might then stand on its own' particular circumstances; but, when the allegation is that the whole amount so taken out by these defendants was at one time, it necessarily follows that they were all present at one and the same time, and that it was in fact one joint transaction. It is not necessary to' charge and expressly allege an act to be the joint act of a number of defendants joined in one indictment, or to allege that they acted in concert by the use of the words “joint” and “concerted” where the facts and circumstances alleged necessarily show the act to have 'been the joint act of all the defendants. State v. Lehman, 182 Mo. 424, 81 S. W. 1118, 66 L. R. A. 490, 103 Am. St. Rep. 670; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Richards v. State, 76 Miss. 268, 24 S. W. 536; Plain v. State, 60 Ga. 284; State v. Johnson, 37 Minn. 493, 35 N. W. 373; Whorton, Crim. Pl. & Pr.; 10 Ency. Pl. & Pr. 554; 22 Cyc. 358-383. If these defendants, as alleged in the indictment, at one time on Saturday, January x, 19x0, wrongfully permitted said loan to be made to shareholders, mostly themselves, in excess of 50 -per cent, of the capital stock of said bank, it necessarily follows as a logical sequence that it -was the one joint act and transaction of all and all acted together; in other words, they permitted one another as officers and shareholders of said bank to at one time by means of said loans to abstract from said bank a sum in excess of the entire capital stock of said bank. Under these circumstances, each and every one could not help but know what each and every one did, and the wrongful act of each was the wrongful act of all, and the ■wrongful act of all was the wrongful act of each. It was an inseparable transaction, and such that it made all principal participators in permitting the loan in excess of the prohibited percentage. Section 30 of said chapter 222 provides as follows: “Any officer, director or employee of any corporation transacting a banking business in this state,- who shall knowingly permit or allow shareholders of such bank to at any one time become indebted to such corporation in a total sum exceeding fifty per cent, of the paid-up capital of such banking corporation, as covered by section 29, shall be deemed guilty of a felony. * * *”

[3, 4] We are of the opinion that the indictment states a public offense under said section 29 and 30, and that the said indictment substantially conforms to the requirements of the Code of Criminal Procedure, in that it contains a statement of the acts constituting said offense substantially in the language of the statute, and which is in such ordinary and concise language as to enable a person of common understanding to know what is intended thereby.

The judgment and order appealed from are reversed, and the cause remanded to the circuit court for further proceedings in accordance with this decision.

CORSON, J., dissents.