State v. Stewart

139 N.W. 371, 30 S.D. 585, 1913 S.D. LEXIS 8

• Court: South Dakota Supreme Court
• Decided: January 6, 1913
• Status: Published

Opinion

SMITH, J.

-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 States of America, as aforesaid, was lost -by the said' Otto Eller-man, to his great damage and injury. And the grand jurors aforesaid, upon their oaths, aforesaid, do further 'present: That Donald A. McPherson, Charles Francis, Henry F. Perkins, and Frank M. Stewart, who were then and there officers of said bank, aforesaid, that is to say, the said Donald A. McPherson at the time and place aforesaid was then and there a director and president of said bank aforesaid, and the said Charles Francis at the time and place aforesaid, was then and there a director of said bank aforesaid, and the said Henry E. Perkins at the time and place aforesaid was then and there vice president and 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, at and before the commission of the said felony of receiving and assenting to the reception of the deposit after having knowledge that the bank was insolvent, as aforesaid, was committed in form • aforesaid, to wit, on the 23d day of December, A. D. 19x1, in the county and state aforesaid, did then and there willfully, unlawfully, feloniously, and knowingly incite, permit, assent to, move, procure, counsel, hire, command, aid, and abet the said Harrold M. Cooper in the commission of said felony aforesaid in the manner ■ and form aforesaid at and in said county and state aforesaid -to do and .commit, 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 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 said defendant prays judgment that he may be dismissed and discharged of the said indictment.” On the 12th day of July, 1912, the circuit court entered its ruling upon said demurrer as follows: “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 which order and ruling the state by its counsel duly excepted, and brings the cause to this court for review.

[1] In his brief respondent contends: First, that the indictment does not state facts sufficient to constitute a public offense, in that the act of 1909, under which the indictment was drawn is unconstitutional; second, that the indictment is uncertain, and does not contain a statement of facts constituting the alleged'offense in ordinary and concise language. The question of the unconstitutionality of chapter 222, Laws of 1909, upon grounds identical with those urged on this appeal, was determined adversely to respondent’s contention in the case of State v. Donald A. McPherson et al., 139 N. W. 368, decided at the present term.

[2, 3] The gist of respondent’s second contention is that the indictment fails to specify the particular facts constituting insolvency. Section 46, c. 222, Laws of 1909, provides that: “A bank shall be deemed insolvent — First: When the actual cash market value of its assets is insufficient to pay its liabilities. Second: When it is unable to meet the demands of its creditors in the usual and customary manner. Third: When it shall fail to make good its reserve as required by law.” If is respondent’s contention that the indictment should have alleged that the bank was insolvent, in that the actual cash value of its assets was insufficient to pay its debts, or because it was unable to meet the demands of its creditors in the usual manner, or that it had failed to make good its reserve as required by law.

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 have the right to demand the nature and cause of the .accusation against him, to have a copy thereof,” together with section 221, Code of Criminal Procedure, which provides: “The indictment or-information must contain * * * (2) 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.” Section. 229 of the Code of Criminal Procedure also further provides: “The indictment or information is sufficient if it can be understood therefrom: * * * (6) That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language without repetition and in such a manner as to enable a person of common understanding to know what is intended. (7) That the act or omission charged as the offense is stated 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 constitutional provision referred to is not a rule of pleading in criminal cases. It does require that the statute prescribing rules of pleading, in criminal cases shall be sufficient, when complied with, to apprise the accused of the nature and cause of the accusation against him. It is sufficient to observe, without a citation of authorities, that statutes containing provisions similar to those above quoted have been held sufficent to comply -with constitutional provisions like our own.

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 have had knowledge of the fact that such -banker, bank or banking institution is insolvent, he shall, upon conviction thereof, be punished by a fine not exceeding $5,000 or by imprisonment in the state penitentiary not exceeding five years, -or by both such fine and imprisonment, in the discretion of the court.” .The gist of the offense created by .this statute consists in the act of receiving or assenting to receiving any deposit of money, etc., after the accused shall have had knowledge of the fact that such banker, bank, or banking institution is insolvent. The indictment specifically charges that respondent assented to receiving -a deposit of money by another employe of the bank, to-wit: One Harrold M. Cooper, assistant cashier of the bank, after the accused, Frank M. Stewart, had knowledge that the bank was insolvent. Do these allegations of the indictment contain “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 are they stated with such -a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of -the case” ? Only one of the allegations, of the indictment is attacked for insufficiency under the statute, namely, the allegation of insolvency. In the case of State v. Stevens, 16 S. D. 309, 92 N. W. 420, the accused was charged under the then existing statute with receiving a deposit as cashier of the bamc; the bank “being then and there insolvent.” • That action was decided upon questions of competency, and sufficiency of the evidence. The sufficiency of the pleading was not' involved in .the appeal.

. . 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, defined insolvency as “a present inability to pay depositors as banks usually do, and meet all liabilities as they 'become due in the ordinary course of business.” If appellant’s contention be correct that the particular facts constituting insolvency must be alleged to comply with section 222, Code of 'Criminal Procedure, requiring that the indictment must be direct and certain as regards the particular circumstances of the offense charged, when they are necessary to constitute a complete offense, then in the Stevens case the allegation of insolvency was insufficient, because - the 'indictment failed to state the particular facts and circumstances constituting insolvency as defined -by the court in that case. The principle is precisely the same whether the definition of insolvency embraces a single state of facts, -as defined by the court in that case, or three different states of fact, as defined by the present statute. We are clearly of the opinion that an allegation of insolvency is an allegation of the ultimate fact specified in the statute, and that the indictment is not demurrable, because it does not specify the particular mode %of proof by which the state may seek to show the fact of insolvency. As was said by this court in State v. Lewis, 13 S. D. 168, 82 N. W. 407, the indictment “gives to the accused all the information necessary to enable him to make preparation for his defense, and in case of an acquittal it contains all of the facts necessary to enable him to plead the .same in bar to any subsequent information or indictment and the offense is charged with sufficient certainty to enable the court to pronounce the 'proper judgment.” In State v. Burchard, 4 S. D. 548, 57 N. W. 491, this court said: “The offense must be set forth with sufficient certainty, not only to enable a person of common understanding to know what is intended, but with sufficient certainty to enable the accused to prepare his defense in advance of the trial.”

' 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' consonance with sound common sense. Doubtless there are cases in which a crime Charged in .the words — of the statute might not sufficiently a'dvise the accused of the specific matters charged as criminal to enable him to prepare his defense, but the case at bar is not one of them. In State v. Lewis, supra, this court approved the general rule laid down in Wharton’s Criminal Pleadings, §220, where it is said: “On the general principles of common law pleadings, it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice from the mere adoption of the statutory terms what the offense he is to be tried for really is.”

[4] Respondent further contends that the indictment charges more than one offense. We cannot agree with this contention. Only one offense is created or contemplated by the statute. In a general sense the object of the statute is to punish fraudulent banking. The theory of the crime is that one who receives a deposit assents to it' and the officer who assents to the act in law receives the deposit. The officer who accepts the deposit, and the officer who assents to the act, with knowledge of the fact that the hank is insolvent, are alike and equally guilty of a single offense. To prove the crime, it is essential to show that some officer, agent, clerk, employe of the bank received a deposit with knowledge of insolvency. To prove another officer of the same bank guilty of the same crime, it is only necessary to show the same act of the officer, clerk, or employe in receiving the deposit and the assent of the other officer to the same act with knowledge of insolvency. Under the statute, both the person who receives the deposit and the person who assents thereto become parties to the same identical act, and both are alike punishable for the one -offense. We are clearly convinced that the trial court erred in sustaining the demurrer and entering judgment dismissing the action. The order and judgment of the trial court are therefore reversed, and the cause remanded for further proceedings, according to law.

CORSON, J., dissenting.