Ballew v. State
| Decision Date | 08 July 1915 |
| Docket Number | A-1934. |
| Citation | 149 P. 1070,11 Okla.Crim. 598,1915 OK CR 65 |
| Parties | BALLEW v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Section 2673, Rev. Laws 1910 (section 2612, Snyder's Comp. Laws 1909), which penalizes any person acting as trustee, banker merchant, etc., contemplates the prosecution of a banker for embezzling the funds of any bank as such, or any specific fund or property which is left for safe-keeping, as distinguished from money or its equivalent deposited on account.
Cash or equivalent, when deposited in a bank, becomes immediately the property of the bank, and no depositor in the ordinary course of business has any right to have the specific currency or cash item returned.
Any transaction had with an officer in charge of a banking institution, which transaction is within the scope of the bank's business and which clearly was intended to be a transaction with the bank, is conclusively presumed to be such. If an employé of a bank, after funds have been deposited with the bank by a customer, embezzles the same the embezzlement is against the property of the bank, and not the depositor.
An information which attempts to charge an offense under section 2673, Rev. Laws 1910, supra, should not attempt to charge that the embezzlement was made from a depositor and at the same time contain allegations that the transaction was had with the embezzler as an agent of the bank, by a customer of the bank, transacting the regular and ordinary business of a depositor.
For an information which is held insufficient to charge an offense under section 2673, Rev. Laws 1910, see opinion.
Appeal from District Court, Blaine County.
T. J Ballew was convicted of embezzlement, and appeals. Reversed.
Seymour Foose and R. C. Brown, both of Watonga, and L. H. Hampton, of Pauls Valley, for plaintiff in error.
A. L Emery, of Watonga, Co. Atty., for the State.
The plaintiff in error, T. J. Ballew, was convicted at the September, 1912, term of the district court of Blaine county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a period of 2 1/2 years.
There are many assignments of error, only two of which we find it necessary to discuss. The first is based upon the contention that the information does not charge a crime under the statute. The information, omitting the caption, is as follows:
"Now comes A. L. Emery, county attorney in and for the state and county aforesaid and gives the court to know and be informed that one T. J. Ballew, late of the county of Blaine and state of Oklahoma on the 24th day of June in the year of our Lord one thousand nine hundred and eight, at and within the said county and state, was then, and there, and for a long time prior thereto, the cashier of the Bank of Commerce, a banking corporation existing and doing business under and by virtue of the laws of the state of Oklahoma, at Geary, and did, as said cashier of said bank, have in his possession and control, and was otherwise intrusted with, personal property, to wit, United States money for the use of another person, then and there belonging, to wit, H. R. Paden, did then and there unlawfully, willfully, and intentionally, knowingly, wantonly, maliciously, feloniously, and fraudulently, embezzle, appropriate, and convert to his own use and purpose, not in the due and lawful execution of his trust, the sum of $109.25, and good and lawful money of the United States, and of the value of $109.25, the property of him, the said H. R. Paden, with the unlawful, felonious, and fraudulent intent upon the part of him, the said T. J. Ballew, then and there to deprive the lawful owner thereof, the said H. R. Paden, of said...
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