Chamberlain v. State
| Decision Date | 05 March 1908 |
| Docket Number | 14,755 |
| Citation | 115 N.W. 555,80 Neb. 812 |
| Parties | CHARLES M. CHAMBERLAIN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county: JOHN B. RAPER JUDGE. Reversed.
REVERSED.
Halleck F. Rose, W. B. Comstock and Neal & Quackenbush, for plaintiff in error.
W. T Thompson, Attorney General, George A. Adams and Jay C. Moore contra.
At the February, 1903, term of the district court for Johnson county a grand jury returned 18 indictments against Charles M. Chamberlain, who was the defendant in the court below, each of which charged him with a specific act of embezzlement of funds of the Chamberlain Banking House of Tecumseh, in that county. On a change of venue he was tried in the district court for Nemaha county on one of the indictments, which reads as follows: "That Charles M. Chamberlain, late of the county aforesaid, on the 25th day of August, in the year of our Lord 1902, in the county of Johnson, and state of Nebraska, aforesaid, then and there being, and then and there being the cashier of the Chamberlain Banking House, a corporation then and there engaged in banking, did then and there embezzle, abstract and wilfully misapply of the moneys and funds of the said Chamberlain Banking House, to wit, the sum of $ 10,000 in money, with intent then and there to injure and defraud said Chamberlain Banking House out of said money, and each and every part thereof, he, the said Charles M. Chamberlain, then and there having received and obtained the said money as such cashier of the said Chamberlain Banking House, and having then and there said money in his possession, control and management as such cashier of said banking house." On motion of the defendant, and by order of the trial court, the words "abstract and wilfully misapply" were eliminated from the indictment, and so the single specific charge on which defendant was placed on trial was the embezzlement of $ 10,000 on the 25th day of August, 1902. The trial resulted in his conviction. He was sentenced to hard labor in the state penitentiary for the period of five years, and has prosecuted error to this court.
1. To establish the charge contained in the indictment, the state, over defendant's objection, introduced evidence of a certain transaction, in substance, as follows: On April 5, 1895, the defendant and his brother Clarence executed a demand note for $ 2,000 payable to Louis Stull, cashier, which came into the possession of the Industrial Savings Bank. Suit was brought on the note in the district court for Lancaster county, and a judgment was obtained thereon against the makers. In payment of that judgment the firm of Chamberlain Brothers, of which the defendant was a member, and which at that time had a deposit account with the Chamberlain Banking House, drew its check on that institution for $ 2,500, which was presented to, and paid by, the bank on the 29th day of March, 1902. The payment of the check caused an overdraft of the account of Chamberlain Brothers amounting to $ 1,765.15. The item was charged to the deposit account of the drawers of the check, and not to any of the general accounts of the bank. We find no proof in the record tending to show that the check causing the overdraft was paid without the assent of the directors of the bank, or a majority of them. No proof was offered by the state to show the pecuniary irresponsibility of the firm of Chamberlain Brothers, or its members, at the time the check was cashed, or prior or subsequent thereto. The check, which was drawn by defendant, was charged to the account of the makers of the note, which it paid, and it was left openly on file in the bank to evidence the debt which its payment created. Payment by a bank upon a check of a sum in excess of the credit balance of an ordinary depositor in the usual course of business, if done with the assent of a majority of directors, is a loan to the depositor of the amount of the overdraft created by the payment. Zane, Banks and Banking (1st ed.), sec. 160; Potter v. United States, 155 U.S. 438; 5 Cyc. 583. The banking act of this state does not make such a transaction unlawful, even where the loan is made to an officer of the bank, except it be done without obtaining the approval of a majority of the directors. Comp. St. 1907, ch. 8, sec. 26. By this statute a substantive element of the offense described therein is that the funds must have been borrowed by the officer without having first obtained the approval of a majority of the directors of the bank. So, in order to make the transaction above described criminal in its nature, it was necessary for the state to allege and prove that the overdraft in question was made without the consent of a majority of the directors of the bank, or with the intention of cheating and defrauding that institution. Notwithstanding this fact, the court gave the ninth instruction requested by the prosecutor predicated on the transaction above described, and which is now assigned as error, by which the jury were told, in substance, that, if the check in question was drawn for, or in payment of, an individual debt or obligation of the defendant, or of Chamberlain Brothers, or of C. M. and C. K. Chamberlain, that the banking house, upon the authority of the defendant, or by his direction, cashed or paid the check out of its own money and charged the same to the account of Chamberlain Brothers, and by so doing overdrew that account with the bank in the sum of $ 1,765.15, and that such payment was made under such circumstances as were liable to imperil the interests of the bank and cause it to lose the amount of the overdraft, then the payment of the check by him, or at his direction as cashier, if done with intent to injure or defraud the bank, would be embezzlement. It may be conceded that this instruction, if based upon sufficient evidence, is a correct statement of the law; but it must be remembered that the state produced no evidence showing or tending to show that the payment of the check was made under circumstances liable to imperil the interests of the bank, or cause the loss of the amount of the overdraft, or that it was done with intent to injure and defraud that institution. It is a well-established rule that instructions must be predicated upon the evidence; and in a criminal prosecution an instruction which submits to the jury the question of the defendant's guilt or innocence of a criminal offense, where the state has produced no evidence tending to prove an element necessary to be shown to make the particular transaction in question criminal in its nature, is prejudicial, and calls for a reversal of a judgment of conviction. As above stated, we find no evidence in the record relating to the matter of the overdraft in question which shows, or tends to show, that at the time the defendant drew the check which created the overdraft it was his intention to cheat and defraud the bank, or that Chamberlain Brothers were insolvent. It is but fair to say that at the time when the bank closed its doors the greater part of the overdraft was unpaid; yet this alone is not sufficient to establish the fact, beyond a reasonable doubt, that the defendant when he drew the check intended to cheat and defraud the bank, for he, or the firm of Chamberlain Brothers, may have fully intended to repay the amount of the overdraft and have had the ability to do so. Indeed, in the absence of evidence direct or circumstantial to the contrary, the presumption is that his intention was that the overdraft would be paid either by himself or the firm. It follows that for the giving of this instruction the judgment of the district court should be reversed.
2. It is strenuously urged that the district court erred in giving the fourth instruction requested by the state. In this connection it is necessary to state the facts on which this instruction was predicated. The evidence discloses that on the 13th day of August, 1902, the bank teller credited the individual deposit account of the defendant with an item of $ 4,600 salary; that the teller made a computation to determine the accuracy of the credit; that in so doing he took the general ledger of the bank and ran back through the expense account until he found the date upon which the defendant had received his last credit for salary. He testified that he knew the amount per month to which the defendant was entitled, and that the defendant had not drawn any salary for 46 months prior to that date. The evidence of the teller on this point was corroborated by several other witnesses for the state. In fact there seems to be no dispute about this matter. It also appears that after the entry of the credit, and before the date...
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