46 N.E. 145 (Ind. 1897), 17,736, State v. Beach
| Date | 18 February 1897 |
| Docket Number | 17,736 |
| Citation | 147 Ind. 74,46 N.E. 145 |
| Parties | State v. Beach |
| Court | Indiana Supreme Court |
Page 145
From the Parke Circuit Court.
Reversed.
OPINION
[147 Ind. 76]
Appellee was prosecuted and acquitted in the court below on the charge of embezzlement. The indictment was based upon section 2031, Burns' R. S. 1894 (Acts 1891, p. 395), which is as follows:
"If any banker, or broker, or person or persons, doing a banking business, or any officer of any banking company, or incorporated bank doing business in this state, shall fraudulently receive from any person or persons, firm, company, corporation, or from any agent thereof, not indebted to said banker, broker, banking company or incorporated bank, any money, check, draft, bill of exchange, stock, bonds, or other valuable thing which is transferable by delivery, when at the time of receiving such deposit, said banker, broker, banking company or incorporated bank is insolvent, whereby the deposit so made shall be lost to the depositor, said banker, broker or officer, so receiving such deposit, shall be deemed guilty [of] embezzlement, and upon conviction thereof, shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto may be imprisoned in the state prison not less than one, nor more than three years.
"The failure, suspension or involuntary liquidation of [the] banker, broker, banking company or incorporated bank, within thirty days from and after the time of receiving such deposit, shall be prima facie evidence of an intent to defraud, on the part of such banker, broker or officer of such banking company or incorporated bank."
After the state had introduced its evidence and rested, the court, on motion of appellee, instructed the jury to return a verdict of not guilty. To which instruction the State excepted and reserved the question.
This is the first error assigned.
[147 Ind. 77] It is insisted by appellee that neither count of the indictment states a public offense, and that, therefore, it was proper for the court to instruct the jury to find appellee not guilty. The question of whether an indictment states facts constituting a public offense should be presented by a motion to quash, or a motion in arrest. In this manner only can the rights of the State be properly protected.
Page 146
If a verdict of not guilty is directed by the court, for the reason that the indictment or information does not state a public offense, and the court should be in error, unless the record shows that the defendant was acquitted for the reason stated, the rights of the State to again prosecute for said offense may possibly be lost under the doctrine that the defendant has been once in jeopardy. 1 Bishop Crim. Law, section 1021; 3 Greenleaf's Ev. section 35; State v. Williams, 5 Md. 82; People v. Barrett, 1 Johns. 66; Comm. v. Purchase, 2 Pick. (Mass.) 525; Vaux's Case, 4 Rep. (Coke) 44; 2 Hale, P. C. 248; 2 Hawk. P. C. ch. 35, section 8; 1 Starkie, Cr. Pl. (2d ed.) 320; 1 Chit. Cr. Law, 458; Archb. Cr. Pl. & Ev. (19th ed.) 143; In Russ. Crimes (6th ed.) 48.
There is no hardship to a defendant in requiring him to present the questions of the sufficiency of the charge against him by motion to quash, or a motion in arrest, so that he may again be indicted for the same offense, and such should be the practice of the trial court.
The only objection pointed out to the indictment is "that it charges that appellee unlawfully, feloniously and fraudulently, received from John Bruns a certain deposit, to-wit, forty-five dollars, etc., when the fact constituting the fraud should have been set out." The offense charged is a statutory one, that is, created and defined by statute, and in such case it is sufficient as a general rule to charge the offense in the [147 Ind. 78] language of the statute, as was done in this case. Ritter v. State, 111 Ind. 324, 12 N.E. 501, and cases cited; Trout v. State, 111 Ind. 499, 12 N.E. 1005.
It was not necessary, therefore, to set out in the indictment the facts constituting the fraud, but it was sufficient to charge the offense in the language of the statute, or in terms substantially equivalent thereto.
Counsel for appellee say "that the material allegations in each count of the indictment are:
1.--The defendant was a banker and person doing a banking business.
2.--That as such banker and person doing a banking business the defendant unlawfully, feloniously and fraudulently received from John Bruns a certain deposit, to-wit, forty-five dollars.
3.--At the time of receiving the deposit the defendant was insolvent.
4.--At the time of receiving the deposit the said John Bruns was not indebted to said defendant.
5.--That said deposit was lost to said John Bruns."
Counsel, however, insist that even if the indictment is sufficient "that there was no proof of any of the foregoing allegations except the first and third; in other words, that there was no evidence upon said second, fourth and fifth allegations; that to establish the allegation that appellee fraudulently received the deposit from John Bruns there must be evidence showing a design on the part of appellee to get Bruns to deposit the money by a trick, artifice, or some representation."
The second section of the act upon which this prosecution is based expressly provides that the failure, suspension, or involuntary liquidation of a banker within thirty days after receiving such deposit shall be prima facie evidence of intent to defraud on the part of such banker.
[147 Ind. 79] It was established by the evidence that appellee had failed and suspended within thirty days after the deposit was made. Appellee earnestly contends that this part of the act is unconstitutional, that it deprives the accused of the benefit of the presumption of innocence.
In Voght v. State, 124 Ind. 358, 24 N.E. 680, this court held that the legislature had the power to enact provisions like the one now in question. The court said: "It has often been held that the legislature, in defining a crime, may also enact that proof of facts which are universally recognized as indicating guilt shall be sufficient prima facie evidence of the commission of an offense defined by statute. For example, it is enacted in section 1817, R. S. 1881, that the failure of a public officer to account for and pay over public money which has come into his hands, shall be prima facie evidence of the embezzlement thereof, and other statutes declare what shall be deemed sufficient evidence in cases of rape, seduction, receiving stolen goods, obstructing highways, and the like."
We think it clear that the legislature has the power to prescribe rules of evidence and methods of proof. A law which would in effect exclude the evidence of a party and thereby deny him the right to be heard, would deprive him of due process of law. A law which provides that certain facts are conclusive proof of guilt would be unconstitutional, as also would one which makes an act prima facie evidence of crime which has no relation to a criminal act, and no tendency whatever to establish a criminal act. If, however, the legislature in prescribing the rules of evidence in any class of cases leaves a party a fair opportunity to establish his case or defense and give in evidence to the court or jury all the facts legitimately bearing on the issues in the cause to be considered [147 Ind. 80] and weighed by the tribunal trying the same, such acts of the legislature are not unconstitutional.
It has repeatedly been held that the legislature has the right to declare what shall be presumptive, or prima facie evidence of any fact. Vogt v. State, supra; Morgan v. State, 117 Ind. 569, 19 N.E. 154; Richard v. Carrie, 145 Ind. 49, 43 N.E. 949; State v. Sattley, 131 Mo. 464, 33 S.W. 41; State v. Buck, 120 Mo. 479, 25 S.W. 573; State v. Kingsley, 108 Mo. 135, 18 S.W. 994; Ess v. Bouton, 64 Mo. 105; Heman v. Wolff, 33 Mo.App. 200; Adkins v. Chicago, etc., R. W. Co., 36 Mo.App. 652; Hand v. Ballou, 12 N.Y. 541; Howard v. Moot, 64 N.Y. 262; Commonwealth v. Williams, 6 Gray 1; Commonwealth v. Wallace, 7 Gray 222; Commonwealth v. Rowe, 14 Gray 47; Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381; State v. Hurley, 54 Me. 562; Board, etc., v. Merchant, 103 N.Y. 143, 8 N.E. 484; People v. Cannon, 139 N.Y. 32, 34 N.E. 759; Delaplaine v. Cook, 7 Wis. 54; Allen v. Armstrong, 16 Iowa 508; Wright v. Dunham, 13 Mich. 414; Gage v. Caraher, 125 Ill. 447, 17 N.E. 777; Chicago, etc., R. R. Co. v. Jones, 149 Ill. 361, 37 N.E. 247; Am. Trust and Sav. Bank v. Gueder, etc., Mfg. Co., 150 Ill. 336, 37 N.E. 227; Robertson v. People, 20 Colo. 279, 38 P. 326;
Page 147
Black on Intoxicating Liquors, section 60; 2 Rice on Evidence, sections 807, 808; 3 Rice on Evidence, section 27; Wharton on Criminal Evidence, section 715a.
In People v. Cannon, supra, the court on page 42 said: "The power to enact such a provision as that under discussion is founded upon the jurisdiction of the legislature over rules of evidence, both in civil and criminal cases. This court has recently had the question before it. (Board of Excise Commrs. v. Merchant, 13 N.Y. 143). The act in that case provided that whenever any person was seen to drink in a shop, etc., spirituous liquors which were forbidden to be drank therein [147 Ind. 81] it should be prima facie evidence that such liquors were sold by the occupant of the premises or his agent with the intent that the same should be drank therein. The defendant was an occupant of premises where liquor could not be legally sold to be drank there, and was prosecuted for selling the same in violation of the act. The only evidence of a sale by the accused occupant was the fact...
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