State v. Davidson

180 N.W. 31, 46 N.D. 564, 1920 N.D. LEXIS 58

• Court: North Dakota Supreme Court
• Decided: November 5, 1920
• Status: Published

Opinions

Birdzell, J.

This is an appeal from a judgment convicting the defendant of the crime of making false statements or entries in the books of a banking corporation. The appellant relies for a reversal upon two main propositions, and it will be unnecessary to do more than state the facts bearing upon these questions. It is first contended that there is a variance between the allegations of the information and the proof, and the second proposition is based upon the exclusion of certain evidence.

The information contains three counts. It alleges the commission of the offense as follows:

“On the 23d of August, in the year of our Lord one thousand nine hundred and seventeen, at the county of Eddy, in the state of North Dakota, one E. R. Davidson, late of the county of Eddy and state aforesaid, did commit the crime of subscribing and making a false statement and entry in the books of a banking association, committed in the manner following, to wit:

“Count 1: That at the said time and place the said defendant was an officer, to wit, the cashier of the Farmers & Merchants Bank, a banking association, organized and doing business under and by virtuo of the banking laws of the state of North Dakota; that at said time and place the said defendant, being an officer of the said bank aforesaid, did wilfully, unlawfully, knowingly, and feloniously in the books of the said Farmers & Merchants Bank subscribe and make a false statement and entry to wit, a certain statement and entry contained in the books of the said Farmers & Merchants Bank, kept in the regular course of business by said bank, said entry being contained in a certain record book of said bank, commonly known as the 'Daily Statement and General Ledger/ of the date of August 23, 1917, which said entry purported to contain upon its face a statement of the total amount of certificate of deposit checks outstanding at the close of business on August 23, 1917, said statement and entry being contained under the head of certificates of deposit checks outstanding, showed the total sum thereof to be $342,090-.46; whereas, in truth and in fact the said sum of $342,090.46 was not the total amount of-certificate of deposit checks outstanding as a liability of said bank on said date, but excluded from the said sum of $342,090.46 was the sum of $11,995, which said sum consisted of certificate of deposit No. 5465 drawn against the assets of the Farmers & Merchants Bank on the 23d day of August, 1917, in the sum of $7,340.30, payable to James E. Renferew, which said certificate of deposit was falsely entered by the defendant upon the records of the said bank and included in the said statement and entry of $342,090.46, as $340.30; whereas, in truth and in fact the said certificate of deposit No. 5465 was issued to James E. Renferew by the defendant in the actual amount of $7,340.30; and certificate- of deposit No. 5425, drawn against the Farmers & Merchants Bank by the defendant on the 1st of August, 1917, payable to W. A. Gordon, which said certificate of deposit was falsely entered by the defendant upon the records of the said bank and included in the said statement and entry of $342,090.46 as $5; whereas, in truth and in fact the said certificate of deposit No. 5425 was issued to W. A. Gordon, drawn upon the Farmers & Merchants Bank by the defendant, in the actual sum of $5,000, which said certificate of deposit No. 5465 and 5425, respectively, contained a total of at least $11,995 not shown in, or contained by, and excluded from the statement and entry of $342,090.46 of said bank, purporting to be the total certificate of deposit checks outstanding for August, 23, 1917; that the said statement and entry in the amount of $342,090.46 was by the defendant falsely made to appear as the total amount of certificate of deposit checks of said bank outstanding on said date; that the said sum of $342,090.46 was not on the 23d day of August, 1917, the total amount of certificates of deposit cheeks outstanding as a liability of the. Farmers & Merchants Bank, but that said sum of $342,090.46 was, on the 23d day of August, 1917, at least $11,995 more than the statement and entry of $342,090.46, contained in the general ledger, purporting to be the total amount of outstanding certificate of deposit checks for said date.”

Counts 2 and 3 contain similar allegations with respect to the certificate of deposit transactions of Renferew and Gordon, treating them separately; that is, count 2 alleges as an independent offense the entries described in count 1 with respect to the Renferew transaction, and count 3 contains similar allegations with respect to the Gordon transaction. The defendant did not demur to the information. Hence, no question, can now be raised as to its charging more than one offense. Comp. Laws 1913, §§ 10,737 and 10,745. Counsel for the appellant concedes that the information is good, and upon this appeal relies only upon certain assignments of error appearing below.

The appellant argues that, inasmuch as the defendant is charged with making a false statement and entry in the books of the Farmers & Merchants Bank, and the entry is described as being contained in a certain record book commonly known as the “Daily Balance and General Ledger,” which entry purported to contain a statement of the total amount of certificates of deposit outstanding at the close of business on August 23, 1917, and being entered under the head of “Certificates of Deposit Checks Outstanding,” showing the total sum to be $342,090.-46, he cannot be convicted in the absence of proof showing that the defendant made such false entries. The evidence shows that the defendant did not personally make the entries described in the Daily Balance and General Ledger, but it further shows that he made entries in the book of original entry, from which, in due course of business, the entries in the Daily Balance and General Ledger of the bank were made. To illustrate: The evidence shows that on August 1, 1917, the defendant issued certificate of deposit No. 5425 to W. A. Gordon for $5,000; that he entered upon the certificate of deposit book the record of this certificate, stating the amount to be $5; and on the 23d day of August, 1917, he issued certificate No. 5465 to James Renferew for the sum of $7,340.30, entering it in the certificate of deposit book as $340.30. From the entry in the certificate of deposit book the items were carried into the daily cash balance book and from there posted in the Daily Balance and General Ledger, where the items enter into the total of certificates of deposit as they had been issued from time to time. The evidence shows that the defendant personally made the entries in the certificate of deposit book, and that the entries in the other books were made by the bookkeeper. It is said that this is a variance.

The statute under which the defendant was prosecuted reads as follows. Sess. Laws 1915, chap. 57:

“Every officer, agent or clerk of any association organized under this chapter, who wilfully and knowingly subscribes or makes any false statements or entries in the books of such association, or knowingly subscribes or exhibits any false paper with intent to deceive any person authorized to examine as to the conditions of such association, or wilfully subscribes or makes false reports, shall be punished by imprisonment in the state penitentiary not less than one nor exceeding ten years,” etc.

The appellant admits that if the information had charged him with having made a false entry in the original.certifieate of deposit book, the proof would support the allegation and there would be no variance. But he contends that the allegations of the information cannot be supported by evidence showing false entries in books of original entry which ultimately find their way into the “Daily Balance and General Ledger.” In our opinion the offense described in the statute is committed whenever a person wilfully and knowingly makes a false entry in any of the books of a banking association; and, within the purview of the statute, one making an original false entry “makes a false entry” in every book which is made up in regular course from the entry or entries in the book of original entry. The pleader can charge the offense to have been committed with respect to any book in which the false entry is carried, but he must, of course, be prepared to prove that the defendant either personally made the entry, specifically directed it to be made, or knowingly directed it through his general control of the manner in which the books were kept. It is admitted in this case that throughout the entire period covered by the transactions in question, and in fact for a long time prior thereto, the defendant was the cashier of the bank, and, as such, in charge of the boobs in a supervisory capacity; that ho was responsible for the general management of the bank and the condition of its books. It is well established that where one sustaining this relation to a bank makes the initial false entry, he is criminally responsible for the acts of other employees in carrying the entry forward into the other books of the bank. Terrell, Crimes by Nat. Bank Officers & Agents, pp. 41, 42; Morse v. United States, 98 C. C. A. 321, 174 Fed. 539, 20 Ann. Cas. 938, and note at page 947; Billingsley v. United States, 101 C. C. A. 465, 178 Fed. 662. Under the principles established by these authorities it is clear that there was no variance in the case at bar.

The further contention is advanced that the state, having alleged the false entry in the daily statement and general ledger as of specific dates affecting the total sum of the certificates of deposit outstanding on these dates, assumed the burden of establishing that the falsity of the total sum so carried forward was not affected by any prior entry, and that in order to sustain this burden it should have been required to establish the correctness of the total save as it is affected by the false entries charged. It is said that otherwise the defendant might be convicted on account of false entries made so far back that the Statute of Limitations had run against the offense. There is no merit in this contention. The information and the proof so connect the false total with the specific false entries as to leave no doubt of the manner in which the total was affected by the false certificate of deposit entries. It was not incumbent upon the state to establish that there had not at some prior time been counterbalancing false entries. The defendant is not charged alone with carrying forward a false total. He is charged with carrying a false total in connection with certain specific false entries.

The next proposition advanced is that the court erred in sustaining objections to the following questions:

Q. Mr. Davidson, referring back to the two exhibits, state’s exhibits 1 and 23, upon which a mistaken entry appears to have been made in each case by you, I will ask you if, in either of these transactions, you realized or acquired any profit or interest to yourself ?

Q. By either of the transactions or both of them, do you know of any loss or anything which the bank with whom you were employed, the Farmers & Merchants Bank, sacrificed any property or anything of value by reason of these mistaken entries ?

Neither gain to the defendant nor loss or prejudice to the bank or to the public is made an ingredient of the offense defined in the statute. It is made an offense to wilfully and knowingly make a false entry. So the answer of the defendant to the above questions would not have disproved any ingredient of the crime. But it is urged that he should have been thus permitted to testify to the absence of motive. While we are mindful that the law has established a broad range of inquiry for the purpose of establishing motive in criminal cases, we are satisfied, upon the record before us, that no prejudicial error was committed in sustaining objections to the above questions. The record, discloses that the defendant went upon the witness stand and testified in great detail ■concerning the manner in which the false entries were made. He stated that they were false from pure accident and mistake. He was permitted to go into every circumstance connected with the immediate issuance of the certificates and the making of the entries that might reasonably be supposed to have a bearing upon the question as to whether it was done by mistake and accident in the manner testified to by him. In his testimony he not only accounted for the way in which the entries happened to be falsely made, but he also told the manner in which he corrected the entries later on. He also stated that his purpose in making the subsequent entries was to balance and rectify the books, and that this was his purpose in making the corrections. His testimony in fact is so replete with the statement that he never intended to make a false entry, that any false entries were made by mistake, and that he later on rectified the mistakes so as to make the books correct, that direct testimony which would only negative private gain to himself and prejudice to the bank would be purely cumulative. It would also be in the nature of a mere conclusion from the facts as testified to by him. If the jury believed the defendant’s version, they must have believed that he never made any profit through these mistakes, and that the bank never suffered.

On the whole record we are satisfied that the defendant had a fair trial and that the issues were properly submitted to the jury. Finding no error, the judgment is affirmed.

Christianson, Oh. J., and Bronson, J., concur.