218 Wis. 83 | Wis. | 1935
While the information was in fourteen counts alleging separate offenses, all of the counts charge the
“221.31 Loans to bank officials; penalty. Every president, director, cashier, officer, teller, clerk or agent of any bank or mutual savings bank who, without authority by resolution of the board of directors previously made and recorded upon its minutes and without one or more indorsers, the responsibility of whom shall have been approved by like previously recorded resolution or in lieu of such indorser or indorsers, collateral security the sufficiency of which shall have been approved by like previously recorded resolution, directly or indirectly borrows or otherwise procures for his use money, funds or property of the bank or mutual savings bank in excess of one thousand dollars in amount or value upon his credit or through use of the credit or accommodation of another person, firm or corporation or by acceptance for discount at said bank or mutual savings bank any note, bond or other evidence of debt which he knows or has reason to know is worth less than the price at which it is accepted as an asset for the bank or mutual savings bank, shall be punished by imprisonment in the state prison not exceeding ten years.”
The violations alleged against defendant had to do with loans on dates beginning April 22, 1928, and ending March.14, 1931. At the times in question defendant was president and director of the Spooner State Bank, and all of .the charges relate to loans from this bank. Each count alleges that on the occasion in question the defendant, “without authority by resolution of the board of directors of said hanking corporation, previously made and recorded upon its minutes, and without an indorser whose responsibility had been approved by like previously recorded resolution, and without collateral security, the sufficiency of which had been approved by like previously recorded resolution, directly or indirectly, borrowed and procured for his own use funds and property of said banking corporation in excess of $1,000 in amount, upon his credit.” Defendant contends that the evidence does not
Count 3, upon which defendant was convicted, is sought to be supported by evidence that on July 21, 1928, defendant borrowed upon his note the sum of $1,000; that on that date he already owed the bank $200 upon his note; that jointly with one E. M. Elliott, vice-president and a director of the bank, he then owed the.sum of $753, the balance due upon a note previously given, and upon which certain payments had been made; that'On that date the wife of defendant, Jennie M. Thomas, owed a note to the bank of $800, which note was in fact to secure a loan to defendant. The evidence is clear that none of the statutory requirements were satisfied with respect to these loans. The violation is arrived at by taking the aggregate of the four notes.
The first contention of defendant is that, since no single loan exceeds $1,000, and since these are four distinct loans, no one of which was in excess of the statutory limit, the statute is not violated. In other words, the contention is that the statutory prohibition is directed at a particular borrowing, and that separate loan transactions may not be added together and the aggregate used to evidence a violation of the statute. It is pointed out that sec. 221.31, as it was in force on July 21, 1928, was repealed by ch. 252, Laws of 1931, and a new section carrying the same section number substituted for it. The new section provides that no bank shall loan more than $1,000 in the aggregate to any director, officer, or employee, except upon conditions which are closely similar to those prescribed by the former section. It is argued from this, that the law as it existed at the times material to this action did not deal with the aggregate amount of loans but with the amount of a single loan, and that it was considered by the legislature necessary to repeal the statute or to amend it in order to achieve the result which the present law clearly ac
The next contention is based on the fact that sec. 221.31, as it now exists, does not amend the former section, but that ch. 252, Laws of 1931, expressly repealed the old section. It is contended that the complete repeal of the section, without a saving clause keeping alive the penalties, makes it impossible to. found a prosecution upon the repealed section. This contention is answered by sec. 370.04, which provides that a criminal prosecution founded upon a repealed statute, whether instituted before or after the repeal, shall not be defeated by the repeal of the statute, “unless the offenses, penalties, forfeitures or rights of action on which such prosecutions or actions shall be founded shall be specially and expressly remitted, abrogated or done away with by such repealing statute.” The contention of defendant is that the complete repeal of sec. 221.31 by ch. 252, does away with the whole of the statute, including the penalties, but sec. 370.04 specifically provides otherwise and requires an express abrogation or remission of offenses and penalties. Halbach v. State, 200 Wis. 145, 227 N. W. 306; Whaley v. State, 200 Wis. 267, 227 N. W. 942; Milwaukee v. Krupnik, 201 Wis. 1, 229 N. W. 43. We therefore hold that defendant’s contention is without merit.
Assuming the statute to penalize loans of more than $1,000 in the aggregate, which do not satisfy the statutory requirements, and further assuming the penalties prescribed by
The state sought to prove by the liability ledger of the bank that the $200 and $1,000 loans were actually made, and it is defendant’s contention that, while the ledger shows notes for $200 and $1,000, respectively, it does not show a transfer of the proceeds to the account of Thomas, or in any manner prove that Thomas ever got the proceeds. The ledger sheets showing Thomas’ account — his deposits and withdrawals— are in evidence, but they do not go back as far as July 21, 1928, so that there is a break in the state’s proof as far as actually showing a credit to Thomas of the proceeds of these notes, or their use by Thomas through checks drawn upon his account. Incidentally, it is contended by defendant that the mere crediting of the amount of the loan to defendant on the books of the bank would not be enough to complete the transaction and establish the violation; that the loan is made,
Returning to the principal contention, it is our conclusion that the evidence is sufficient to support the conclusion of the jury that by July 30, 1928, defendant had received the proceeds of both loans for his own use. Defendant offered in evidence, for the purpose of showing good faith and lack of criminal intent, that the $1,000 note was repaid to the bank on September 24, 1928, and that the $200 note was paid nine days after the $1,000 loan on July 30, 1928. The books of the bank likewise show payments on these dates. It also appears that the $200 note was paid out of the proceeds of the $1,000 loan. This evidence was offered for the purpose of showing that, excluding the Elliott and Jennie M. Thomas loans, there was no increase in indebtedness beyond the $1,000 limit by reason of the $1,000 loan on July 21st. The fact that both notes were ultimately repaid, and that the smaller loan was paid from the proceeds of the larger one, is evidence from which the jury could conclude that by July 30, 1928, the proceeds of the loans were in defendant’s hands.
Defendant’s next contention is that, since the $200 note was paid out of the proceeds of-the $1,000 note, there was no increase of indebtedness by the transaction. On the other hand, since the $1,000 note was executed on July 21st, and since the $200 note was not paid until July 30th, it is claimed by the state that there is at least a period of nine days during which both notes were outstanding. This raises the question whether the fact that defendant repaid the loans, which supports the inference that at some time not later than July 30, 1928, he received their proceeds for his own use, would also warrant the jury in finding beyond a reasonable doubt that he received the proceeds upon the respective dates when the
Defendant is entitled to have determined the question “whether there was adduced upon his trial evidence which, if believed by the jury and rationally considered, was sufficient to prove his guilt beyond a reasonable doubt.” Parke v. State, 204 Wis. 443, 235 N. W. 775. The inference failing to meet the prescribed test, it follows that judgment must be reversed.
By the Court. — Judgment reversed, and cause remanded with directions to discharge defendant from custody.