139 N.W. 371 | S.D. | 1913
-Appeal from the circuit court of Meade county. Respondent, Frank M. Stewart, was indicted 'by- the grand jury of Meade county, together with Harrold M. 'Cooper, Donald A. McPherson, Charles Francis, and Henry- E. Perkins. The indictment is 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 authority of the state of South Dakota, upon their oaths, present: That Harrold M. Cooper, late of said county, yeoman, on the 23d day- of December, in the year of our Eord one thousand nine hundred and eleven, at and in the county of Meade, and state of- South Dakota, aforesaid, within the jurisdiction of this court, then and there being assistant cashier 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 laws of the state of South Dakota, and which said banking corporation aforesaid was then and there engaged in transacting a banking business at and in the city of Sturgis, in said county and state aforesaid, and which said bank aforesaid was then and there insolvent, did then and there felo-niously and knowingly receive and assent to the reception on deposit into and for the Meade County Bank of Sturgis, a banking corporation,' as assistant cashier thereof, of and from one Otto Ellerman, the sum of one hundred and eighty (180) dollars, in current money of the United States of America, a more particular description of which said money is to the grand jurors unknown, and he, the said Hlaro-ld M. Cooper, as assistant cashier of said bank aforesajd, at the time of receiving and assenting to the reception of said deposit, he, the said Harrold M. Cooper, then and there knowing and having had knowledge at the time of the reception of said deposit, that the said bank aforesaid was then and there insolvent, and he, the ,sa-id Harrold M. Cooper aforesaid, then and there well knowing then and there of such, insolvency aforesaid of the said the Meade County Bank of Sturgis, a banking corporation as aforesaid, whereby the said deposit of-one hundred and eighty (180) dollars aforesaid, current money of the United
To this indictment the defendant Frank <M. Stewart interposed his separate demurrer as follows: “(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 acts constituting the alleged offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. And 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 uncertain in such' regard. (2) That more than one offense is- charged in said indictment. (3) That the facts stated in said indictment • do not constitute a- public • offense. Wherefore
Respondent’s further contention is that the indictment is insufficient, in that the insolvency of the bank is a particular circumstance necessary to constitute a complete offense, and the indictment is not direct and certain as to this necessary element, as required by section 222, Code Criminal Procedure.
In support of his contention, respondent cites the constitutional provision that “in all criminal prosecutions, the accused shall
The only question presented, therefore, is whether the indictment in this case contains allegations which comply with the requirements of the Code in relation to pleadings in criminal causes. It will be observed that these statutes require a statement of the acts constituting the offense in ordinary and concise language and in such manner as to. enable a person of common understanding to know what is intended,-and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case. The statute under which this indictment was drawn declares that if any banker, or “any president, director, -manager, cashier or other officer, or any agent, clerk, or employe of any banks, bank, or banking institution doing business in this -state, shall receive or assent to the reception of any deposit of money or other valuable thing by any such banker or in such bank or banking institution * * * after he shall
. . A somewhat extended examination of the authorities fails to reveal a single case in which it is held that an allegation of insolvency is not. an allegation of ultimate fact in this class of cases. Apparently respondent’s counsel concedes • that such an allegation would be sufficient at common law, or under the statute existing when the case of State v. Stevens was decided. It is appellant’s contention that the recently enacted section of the statute defining insolvency has in .some way changed 'the former rule. We are unable to agree with counsel in this view. Under our former statute, as well a's under all similar statutes, the fact of insolvency is an essential element of the crime. It is true, as claimed by appellant, that this court in the case of State v. Stevens, supra, de
' Applied to the particular point under discussion, the rule stated requires merely that the accused shall be advised of the fact that the bank is alleged to have been insolvent when the deposit was received. As to the allegation of insolvency the only preparation of evidence in advance of the trial is .the preparation of evidence to show that the bank was solvent when the deposit was received. To hold that the allegation of insolvency does not advise the accused sufficiently to enable him to prepare the evidence to show solvency would be technical in the extreme, and not in'