Goss, C. J.
The defendant was acquitted by the jury. This is a proceeding brought by the state as plaintiff in error to review alleged errors in instructions. It is provided for by sections 10192, 10193, and 10194, Comp. St. 1922.
No bill of exceptions showing the evidence is before us. The bill of exceptions, settled and allowed by the trial judge, consisted of the usual transcript of the record, the items of which it is unnecessary to list here.
The defendant was charged in each of the eight counts of the information with unlawfully receiving a deposit, knowing the bank to be insolvent. Comp. St. 1922, sec. 8010. While count one was dismissed, it contains the description of the bank, incorporated by reference into each of the other seven counts. As it is typical of those submitted to the jury, we quote it:
“In Dodge county, Nebraska, on or about January 7, 1928, the First State Bank of North Bend, Nebraska, a banking corporation organized, existing and transacting a banking business under the laws of said state relating to banks, did unlawfully accept and receive into said banking corporation on deposit from one E. A. Hoff, subject to his checking thereon, money, bank bills, United States currency, checks, drafts and credits in the sum and value of one hundred thirty-seven and 25/100 ($137.25) dollars, the exact character and description thereof complainant is unable to more fully give, said banking corporation being, at said time, insolvent. On said date, Thomas J. Kastle, defendant, then being president, director, officer, agent and employee of said banking corporation, by virtue whereof he had custody, charge, direction and control of [760]*760the business affairs of said banking corporation, did then and there, then and there being, by virtue of said-official positions, knowingly, unlawfully, and feloniously accept and receive, and cause to be accepted and received, into, and on deposit in, said banking corporation, the aforesaid deposit in manner aforesaid, knowing that said banking corporation was then and there insolvent.”
The state assigns as error the giving by the court of instruction No. 12, as follows:
“12. Even though you find from the evidence and beyond a reasonable doubt that the First State Bank of North Bend was in fact insolvent on the 7th, 9th and- 10th of January, 1928, when it is alleged in the information that the deposits in question were received by the defendant Kastle, and that the defendant Kastle knew it to be insolvent, nevertheless, if you further find that the department of trade and commerce knew substantially as much about the condition of said bank as defendant Kastle knew about it, and permitted it to remain open, and if you further find that defendant Kastle, on and prior to the 7th, 9th and 10th of January, 1928, believed and expected in good faith, and on reasonable grounds, that he could strengthen its condition and continue it in business as a going concern and eventually, and within a reasonable time, restore it to a condition of solvency, then and in such case, you would not be justified in finding the defendant guilty.”
The state also assigns as error the giving by the court of instruction No. 13, as follows:
“13. You are instructed that the allegation of the information that the defendant Kastle was in control of the bank in question is not a material allegation. If you find from the evidence and beyond a reasonable doubt that de-r fendant Kastle, personally and voluntarily and of his own free will and choice, received one or more of the seven deposits referred to in the information knowing the bank to be insolvent at the time, you would be justified in finding against him as to such element of the crime. If, on [761]*761the other hand, you find that in receiving the deposits, or any of them, he was not acting freely and voluntarily but as a mere agent or employee or under the direction of some other person or agency, or if there is a reasonable doubt in your minds as to such question, you should find him not guilty.”
All the instructions given by the court are shown in the record. In instruction No. 5 the court had instructed the jury as to the elements of the crime necessary to be proved by the state beyond a reasonable doubt before finding the defendant guilty on any count. Briefly stated, these are: (1) That the bank accepted and received the deposit on or about the date stated; (2) that the defendant was president, director, officer, agent or employee of the bank at the time; and (3), as such, accepted and received, or caused to be accepted and received, into such bank, such deposit; and (4) that the defendant then knew said bank to be insolvent.
The brief of defendant in error filed by counsel appointed by the trial judge under the authority of section 10192, aforesaid, and his oral argument on the hearing, challenge the right of the state to have the instructions reviewed in the absence of a bill of exceptions showing the evidence presented at the trial. That brief says: “We find no quarrel with any of the propositions of law cited by counsel as abstract propositions. The difficulty is in applying these propositions to the material facts in the case, and we have no facts.” Defendant in error cites no cases or precedents.
The state takes the position that each of the instructions complained of shows on its face that it is erroneous— that, assuming the ultimate facts, as stated by the court, to be found by the jury, this would not lead to the conclusion that the defendant was not guilty.
Before concluding what the applicable rule is, it is necessary to determine what the issues of fact and the law were. Shortly stated, the defendant was charged, as we have shown by the quoted typical count, with receiv[762]*762.ing deposits, knowing that the bank was insolvent. The issue was joined by his plea of not guilty. It is presumed that the state’s evidence made out at least a prima facie case by proving the necessary elements involved in the charge. Otherwise, the cause would not have been submitted to the jury. The defendant then had the right, under his plea of not guilty, to offer any competent evidence tending to show that he was not güilty of the offense charged. In the absence of a bill of exceptions containing the evidence, what is the law as to what must be considered by us as having been presented by the evidence to the jury?
When no bill of exceptions, showing the evidence, is presented on review, instructions that might have been proper under any evidence that might have been legally admissible under the pleadings or information will not be held prejudicial and erroneous. The presumption of law is in favor of the instructions. Connor v. Schreiner-Flack Grain Co., 2 Neb. (Unof.) 188; Willis v. State, 27 Neb. 98; Oltmanns v. Findlay, 47 Neb. 289; Home Fire Ins. Co. v. Weed, 55 Neb. 146; Clary v. State, 61 Neb. 688; Meyers v. Menter, 63 Neb. 427. By our own decisions we seem to be consistently committed to this rule and it is unnecessary to cite cases from other jurisdictions on this point.
However, no instruction can be considered proper under the evidence if it states the law erroneously when applied to the particular fact or state of facts clearly indicated by the instruction itself. This seems legally self-evident, because in such a situation the error of law appears on the face of the instruction • itself. In Willis v. State, supra,
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Goss, C. J.
The defendant was acquitted by the jury. This is a proceeding brought by the state as plaintiff in error to review alleged errors in instructions. It is provided for by sections 10192, 10193, and 10194, Comp. St. 1922.
No bill of exceptions showing the evidence is before us. The bill of exceptions, settled and allowed by the trial judge, consisted of the usual transcript of the record, the items of which it is unnecessary to list here.
The defendant was charged in each of the eight counts of the information with unlawfully receiving a deposit, knowing the bank to be insolvent. Comp. St. 1922, sec. 8010. While count one was dismissed, it contains the description of the bank, incorporated by reference into each of the other seven counts. As it is typical of those submitted to the jury, we quote it:
“In Dodge county, Nebraska, on or about January 7, 1928, the First State Bank of North Bend, Nebraska, a banking corporation organized, existing and transacting a banking business under the laws of said state relating to banks, did unlawfully accept and receive into said banking corporation on deposit from one E. A. Hoff, subject to his checking thereon, money, bank bills, United States currency, checks, drafts and credits in the sum and value of one hundred thirty-seven and 25/100 ($137.25) dollars, the exact character and description thereof complainant is unable to more fully give, said banking corporation being, at said time, insolvent. On said date, Thomas J. Kastle, defendant, then being president, director, officer, agent and employee of said banking corporation, by virtue whereof he had custody, charge, direction and control of [760]*760the business affairs of said banking corporation, did then and there, then and there being, by virtue of said-official positions, knowingly, unlawfully, and feloniously accept and receive, and cause to be accepted and received, into, and on deposit in, said banking corporation, the aforesaid deposit in manner aforesaid, knowing that said banking corporation was then and there insolvent.”
The state assigns as error the giving by the court of instruction No. 12, as follows:
“12. Even though you find from the evidence and beyond a reasonable doubt that the First State Bank of North Bend was in fact insolvent on the 7th, 9th and- 10th of January, 1928, when it is alleged in the information that the deposits in question were received by the defendant Kastle, and that the defendant Kastle knew it to be insolvent, nevertheless, if you further find that the department of trade and commerce knew substantially as much about the condition of said bank as defendant Kastle knew about it, and permitted it to remain open, and if you further find that defendant Kastle, on and prior to the 7th, 9th and 10th of January, 1928, believed and expected in good faith, and on reasonable grounds, that he could strengthen its condition and continue it in business as a going concern and eventually, and within a reasonable time, restore it to a condition of solvency, then and in such case, you would not be justified in finding the defendant guilty.”
The state also assigns as error the giving by the court of instruction No. 13, as follows:
“13. You are instructed that the allegation of the information that the defendant Kastle was in control of the bank in question is not a material allegation. If you find from the evidence and beyond a reasonable doubt that de-r fendant Kastle, personally and voluntarily and of his own free will and choice, received one or more of the seven deposits referred to in the information knowing the bank to be insolvent at the time, you would be justified in finding against him as to such element of the crime. If, on [761]*761the other hand, you find that in receiving the deposits, or any of them, he was not acting freely and voluntarily but as a mere agent or employee or under the direction of some other person or agency, or if there is a reasonable doubt in your minds as to such question, you should find him not guilty.”
All the instructions given by the court are shown in the record. In instruction No. 5 the court had instructed the jury as to the elements of the crime necessary to be proved by the state beyond a reasonable doubt before finding the defendant guilty on any count. Briefly stated, these are: (1) That the bank accepted and received the deposit on or about the date stated; (2) that the defendant was president, director, officer, agent or employee of the bank at the time; and (3), as such, accepted and received, or caused to be accepted and received, into such bank, such deposit; and (4) that the defendant then knew said bank to be insolvent.
The brief of defendant in error filed by counsel appointed by the trial judge under the authority of section 10192, aforesaid, and his oral argument on the hearing, challenge the right of the state to have the instructions reviewed in the absence of a bill of exceptions showing the evidence presented at the trial. That brief says: “We find no quarrel with any of the propositions of law cited by counsel as abstract propositions. The difficulty is in applying these propositions to the material facts in the case, and we have no facts.” Defendant in error cites no cases or precedents.
The state takes the position that each of the instructions complained of shows on its face that it is erroneous— that, assuming the ultimate facts, as stated by the court, to be found by the jury, this would not lead to the conclusion that the defendant was not guilty.
Before concluding what the applicable rule is, it is necessary to determine what the issues of fact and the law were. Shortly stated, the defendant was charged, as we have shown by the quoted typical count, with receiv[762]*762.ing deposits, knowing that the bank was insolvent. The issue was joined by his plea of not guilty. It is presumed that the state’s evidence made out at least a prima facie case by proving the necessary elements involved in the charge. Otherwise, the cause would not have been submitted to the jury. The defendant then had the right, under his plea of not guilty, to offer any competent evidence tending to show that he was not güilty of the offense charged. In the absence of a bill of exceptions containing the evidence, what is the law as to what must be considered by us as having been presented by the evidence to the jury?
When no bill of exceptions, showing the evidence, is presented on review, instructions that might have been proper under any evidence that might have been legally admissible under the pleadings or information will not be held prejudicial and erroneous. The presumption of law is in favor of the instructions. Connor v. Schreiner-Flack Grain Co., 2 Neb. (Unof.) 188; Willis v. State, 27 Neb. 98; Oltmanns v. Findlay, 47 Neb. 289; Home Fire Ins. Co. v. Weed, 55 Neb. 146; Clary v. State, 61 Neb. 688; Meyers v. Menter, 63 Neb. 427. By our own decisions we seem to be consistently committed to this rule and it is unnecessary to cite cases from other jurisdictions on this point.
However, no instruction can be considered proper under the evidence if it states the law erroneously when applied to the particular fact or state of facts clearly indicated by the instruction itself. This seems legally self-evident, because in such a situation the error of law appears on the face of the instruction • itself. In Willis v. State, supra, it .was said that, in such circumstances, the instructions “will be presumed to be correct, unless they misstate the law and contain propositions which could not be held correct in any possible case made by the proof under the complaint or information upon which the prosecution was founded.”
The department of trade and commerce is an executive - and administrative branch of the state government. Comp. [763]*763St. 1922, sec. 7243. It is given general supervision of banks and banking under the laws of the state. Comp. St. 1922, sec. 7982. It may under certain conditions take charge of a state bank and turn it over to the guaranty fund commission. Laws 1925, ch. 30, sec. 1, amending Laws 1923, ch. 191, sec. 11.
The guaranty fund commission, created by chapter 191, Laws 1923, was, under section 18, as amended by section 4, ch. 30, Laws 1925, given power to manage any bank, which it had taken over from the department of trade and commerce, “as a going concern, without regard to its solvency, and, through employees, perform all duties and acts of the officers and directors of such bank while managing the same.”
The offense of receiving a deposit when a bank is insolvent is not a crime of itself but it is a felony created by the statute relating to banks. Moral turpitude is not involved. Good motive is not a defense. The statutes give no authority to the department of trade and commerce to receive, or to authorize the receiving of, deposits by an insolvent bank. The statutory power or authority to receive deposits in such a bank resided alone, at the time in question, in the guaranty fund commission. It had no authority over any bank until it was taken over by it. Not the bank or any of its officers, nor the department of trade and commerce or any of its agents, had such power or authority. Moreover, it was the statutory duty of the department of trade and commerce, when it took over a bank, to place it in charge of the guaranty fund commission.
Under his plea of not guilty the defendant might have relied on lack of evidence on the part of the state to prove beyond a reasonable doubt the essential elements of the offense charged; or he might have produced evidence that he was absent at the time the offense was committed, that he was incompetent to commit the act, that another committed the act, that the guaranty fund commission was in charge of the bank, operating it “as a going.concern, [764]*764without regard to its solvency,” and that he was, at the time the deposit was received, an employee of the commission and received the deposit under its direction.
By instruction No. 12 the court advised the jury in effect that the evidence justified them in finding (1) that the department of trade and commerce knew substantially as much about the insolvency of the bank as the defendant knew but permitted the bank to remain open; and (2) the defendant at the time of receiving the deposits had reasonable ground for believing in good faith that he could continue the bank in business as a going concern and restore its solvency; and (3) if they found these facts, the court instructed them, as a matter of law, they would not be justified in finding the defendant guilty.
From what has gone before we have seen that the department has no authority to operate an insolvent bank or to authorize a bank, its officers or employees, to violate the criminal laws by receiving deposits when they know the bank is insolvent. Good faith and hopefulness, though ever so patent as facts, are impotent as defenses. Assuming that these facts stated in the instruction were derivable from the evidence, they did not in any degree justify the conclusion of law that the defendant was not guilty. The instruction was erroneous, as is shown on its face.
By one alternative of instruction No. 13 the court advised the jury, in effect, that there was evidence that, in receiving deposits for the insolvent bank, “he was not acting freely and voluntarily but as a mere agent or employee or under the direction of some other person or agency;” and they were instructed, as a matter of law, that if they so found, or if there was a reasonable doubt in their minds as to such question, they should find the defendant not guilty. On account of the absence of the evidence and because this instruction does not bear internal evidence of all the facts the court had in mind, we are unable definitely to say that all of this part of the instruction is erroneous. We know however that, as we have demonstrated [765]*765elsewhere in this opinion, there was only one “person or agency” that could legally direct a banker to accept a deposit in an insolvent state bank on or about January 7, 1928 — that was the guaranty fund commission. The department of trade and commerce could not. If, as implied in the previous instruction, the true facts showed that the guaranty fund commission was not in charge of the bank, then this part of instruction Nó. 13 ought not to have been given.
The state also suggested as error the refusal of the trial court to give an instruction requested by the state. That instruction refers to certain arguments of counsel, states that there “is no evidence before you to justify such remarks of counsel,” etc., and asks the jury to disregard such arguments. As the evidence is not before ^ us, we cannot say that there was any error in the refusal'to give this requested instruction. The coqrt may have decided the alleged remarks were not made or that the state took no exception’ to them or that their effect had been taken care of at the time they were made.
Under section 10194, Comp. St. 1922, the judgment here does not in any manner affect the judgment of the district court. But the decision here determines the law governing similar cases pending or those that may arise hereafter. As indicated in the opinion, the exceptions are allowed in part and otherwise denied.
Exceptions allowed in part, and denied in part.