Ex parte Lockhart
| Decision Date | 27 December 1924 |
| Docket Number | 5671. |
| Citation | 232 P. 183,72 Mont. 136 |
| Parties | Ex parte LOCKHART. |
| Court | Montana Supreme Court |
Habeas corpus by L. B. Lockhart directed to the sheriff of Cascade County. Writ discharged, and prisoner remanded to custody.
W. F O'Leary, of Great Falls, for petitioner.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for respondent.
L. B Lockhart, having been convicted of the crime of making a false report to the state superintendent of banks, applied to this court for his release on habeas corpus. The sheriff of Cascade county, to whom the writ was directed, made return that he holds the prisoner in his custody by virtue of a judgment of the district court sentencing him to a term of imprisonment, and a commitment from the court directing the delivery of the prisoner to the warden of the penitentiary. A copy of the indictment upon which the trial was had, a copy of the judgment, and a copy of the commitment are attached to and made a part of the return.
The writ of habeas corpus is not supervisory in character, nor may it be made to perform the function of an appeal (In re Jones, 46 Mont. 122, 126 P. 929) its only office here is to present the inquiry whether the court a quo had jurisdiction (In re Gomez, 52 Mont. 189, 156 P. 1078), for if jurisdiction were wanting, the judgment is void (In re Schaffer, 69 Mont. ---, 227 P. 37). The preponderant authority now sanctions the rule that in order for a judgment to be proof against an attack by habeas corpus, the court which rendered it must have had jurisdiction of the person and of the subject-matter, and, in addition thereto, must have had authority to render the particular judgment which it did pronounce. The absence of any one of these factors renders the judgment open to collateral attack (In re Mettler, 50 Mont. 299, 146 P. 747).
It cannot be questioned here that the court below had jurisdiction of the person of Lockhart (Haupt v. Simington, 27 Mont. 480, 71 P. 672, 94 Am. St. Rep. 839) and jurisdiction to try him for the particular offense (section 11, art. 8, Constitution of Montana) if he were before the court charged with that offense.
While there is some diversity of opinion upon the question whether the sufficiency of the indictment or information may be questioned on habeas corpus after conviction to impeach the judgment, we are of the opinion that it may be done; for the jurisdiction of the district court in criminal matters extends only to acts which the law declares to be criminal, and if in this instance the prisoner is restrained of his liberty for the commission of an act or acts to which the law does not attach criminality, the court acted beyond its jurisdiction in passing judgment upon him and he is entitled to his release. But where the indictment or information is attacked for the first time after judgment, every intendment will be resolved in favor of its sufficiency, or, in other words, this court on habeas corpus will not go farther than to inquire whether, upon any admissible theory, the indictment or information states a public offense, however informal the charge may be.
In the indictment before us the state charges that during May, June, and July, 1921, the Miners' State Bank of Sand Coulee was a domestic corporation engaged in banking business in Cascade county, and that at all such times Lockhart was a director of that bank; that in July, 1921, the state superintendent of banks called upon the Miners' State Bank of Sand Coulee to report fully its condition at the close of business on June 30, 1921; that, in response thereto, Lockhart and Sprengeler, the cashier, on July 14, 1921, made a report to the superintendent, which report was verified by Sprengeler and attested by Lockhart, and forwarded to the superintendent and by him received some time during the month of July, 1921. It is charged further that the report contained a material statement which was false and known to be false by Lockhart and Sprengeler.
1. It will be observed that it is charged that, in making the report, Lockhart acted in his capacity as a director of the bank, and it is urged, first, that he could not be "guilty of the offense charged in the indictment because a director, as such, has no right or authority to make any report to the state superintendent of banks." While it is true that the affairs of a bank are managed by a board of directors (section 6025, Rev. Codes), and that this contemplates concerted action as distinguished from the action of the individuals constituting the board, nevertheless, if the Legislature has seen fit to impose special duties upon the individual director, he cannot escape responsibility therefor merely because the board, as an entity, has the general management of the affairs of the bank. The question arises, then: Has the Legislature imposed any duty upon the individual director with respect to the reports which his bank is or may be required to make to the superintendent of banks?
So far as this alleged offense is concerned, the governing statutes are found in sections 6014-6109, Revised Codes of 1921; the amendments made in 1923 are disregarded. So much of section 6071 as is material to this inquiry, reads as follows:
"Every bank shall make to the superintendent of banks not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president, vice president, or cashier of such bank, and attested by the signatures of at least two of the directors."
These may be designated the regular reports.
Section 6073 provides that the superintendent may also require from a bank a special report, verified as required by section 6071, "whenever in his judgment such special report is necessary to inform him fully of the actual financial condition and affairs of such bank."
It does not appear directly whether the report upon which this indictment is laid was a general or a special report. From the fact that it was attested by only one director (Lockhart) counsel for the prisoner concludes that it must have been a special report; but the conclusion is hardly justified, since section 6073 does not, in terms at least, require a special report to be attested at all. Upon this hearing, and in the absence of any showing to the contrary, we will assume that in attesting the report the director did just what he was required to do, and the fact that another director did not join in the attestation does not affect the situation at all. State v. Struble, 19 S.D. 646, 104 N.W. 465; Cochran v. United States, 157 U.S. 286, 15 S.Ct. 628, 39 L.Ed. 704.
The immediate question, then, is: Does section 6071 impose upon a director the duty of making these regular reports? It goes without saying that when the statute requires the bank to make the report it contemplates that it shall act through its duly constituted representatives, since a corporation cannot act otherwise. The report must be verified by the president, vice president, or cashier, and attested by the signatures of at least two directors. It is the making of the false report which is condemned by the law, and it is for that act that the penalty is prescribed by section 6077. That section reads:
"Every person authorized by the provisions of this Act to make statements or reports, who willfully and knowingly subscribes or makes any false statement or report, shall be deemed guilty of a felony," etc.
The word "make" has many significations, among others, "to produce; to execute with the requisite formalities; to put forth, give out, deliver; to inform, apprise." Century and Webster's Internat. Dictionaries. The particular meaning to be imputed to it in any given instance must be determined from the context and the general purpose of the provision in which it is found.
Section 6071 requires that every bank "shall make to the superintendent of banks not less than five reports during each year," and section 6073 declares that the purpose of the reports is "to inform him fully of the actual financial condition and affairs of such bank." In view of these statutory declarations it becomes apparent at once that to make such report does not comprehend merely...
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