Hinshaw v. State

• Decision Date: 07 October 1919
• Docket Number: No. 23168.,23168.
• Citation: 188 Ind. 447,124 N.E. 458
• Parties: HINSHAW v. STATE.
• Court: Indiana Supreme Court

188 Ind. 447

124 N.E. 458

HINSHAW

v.STATE.

No. 23168.

Supreme Court of Indiana.

Oct. 7, 1919.

Appeal from Circuit Court, Hamilton County; Fred E. Hines, Special Judge.

John L. Hinshaw was convicted of violation of Burns'Ann. St. 1914, § 2295, and appeals.Reversed, with instructions.Ira W. Christian and Floyd G. Christian, both of Noblesville, Ed. V. Fitzpatrick and W. D. Fitzpatrick, both of Indianapolis, and Ralph H. Waltz, of Noblesville, for appellant.

Elmer E. Hastings, of Washington, Ind., U. S. Lesh, of Huntington, Edward M. White, of Indianapolis, and Dale F. Stansbury, of Covington, for the State.

WILLOUGHBY, J.

This is an appeal from a conviction in a criminal prosecution brought by indictment in two counts.In the first count of said indictment the appellant was charged with feloniously, unlawfully, and knowingly overdrawing his account in the People's State Bank of Arcadia, Ind., while being then and there president and director of the said bank, contrary to section 2295, Burns 1914; and in the second count of said indictment the appellant was charged with feloniously, unlawfully, and knowingly drawing and receiving payment of a check on said bank when the appellant knew at the time that he had no funds to his credit in said bank, and that at the time the appellant did not have the written consent thereto of the board of directors, manager, or managers of said bank indorsed on said check, contrary to section 2295, Burns 1914.The statute under which said indictment is found (section 2295, Burns 1914) reads as follows:

“Whoever, being president, director, cashier, teller, clerk, officer or employé of any incorporated bank, or of any firm, corporation, person or association doing a banking business, shall knowingly overdraw his account in such bank, or in such other institution doing a banking business, or who shall knowingly draw and receive payment on any check on such bank, firm, corporation, person or banking association when he has no funds to his credit therein without first procuring the written consent thereto of the board of directors of any such incorporated bank, or the manager, or managers of any such firm, corporation, person or association doing a banking business, indorsed on such check, shall be deemed guilty of a felony, and, on conviction, shall be imprisoned in the state prison not less than two years nor more than fourteen years, and fined in double the sum so received.”

Appellant in his brief setting out errors relied on for reversal enumerates 46 alleged errors, but they may all be properly discussed under two heads, viz:

Overruling appellant's separate and several motions to quash each count of the indictment, and overruling appellant's motion for a new trial.

The defendant, in his motion to quash, attacks the sufficiency of the indictment, and each count thereof, and says that the facts stated in the indictment, and each count thereof, separately do not constitute a public offense; that the indictment, and each count thereof, contains matter which, if true, would constitute a legal justification of the offense charged and a legal bar to the prosecution; and that the indictment, and each count thereof, does not state the offense with sufficient certainty and proceeds upon no definite theory.

It will be observed that section 2295, Burns 1914, defines two felonies.The first clause of said section provides that if the president, director, cashier, teller, clerk, officer, or employé of any incorporated bank, or of any firm, corporation, person, or association doing a banking business, shall knowingly overdraw his account in such bank, or in such other institution doing a banking business, he shall be deemed guilty of a felony.And in the second clause of said section it is provided that any such person who shall knowingly draw and receive payment on any check on such bank, firm, corporation, person, or banking association, when he had no funds to his credit therein, without first procuring the written consent thereto of the board of directors of any such incorporated bank, or the manager or managers of any such firm, corporation, person, or association doing a banking business, indorsed on such check, shall be deemed guilty of a felony.

[1][2] In the first count of the indictment, after the formal parts, it alleges that the defendant, John L. Hinshaw, on or about the 10th day of March, 1914, at Hamilton county, in the state of Indiana, was then and there president and director of a certain incorporated bank doing a banking business in said Hamilton county, in the state of Indiana, to wit, People's State Bank, and did then and there feloniously, unlawfully, and knowingly overdraw his account in said bank.This is a statement of every material fact necessary to constitute the felony defined in the first clause of said section 2295, Burns 1914, and the said allegations are statements of fact and not conclusions.

[3] The second count, by allegations of fact, charges the defendant with the commission of every act constituting the commission of a felony as defined by the second clause of said section 2295, Burns 1914.It is claimed by appellant that this count of indictment alleges that the defendant“knew at the time that he had no funds to his credit in said bank,” but that said count of said indictment does not say that he had no funds to his credit in said bank.We think the only reasonable construction that can be put on the expression that “appellant knew at the time that he had no funds to his credit in said bank” is that he had no funds to his credit in said bank, and knew he had none.Said second count of said indictment also avers that at the time the said John L. Hinshaw did not have the written consent thereto of the board of directors, manager, or managers of said bank indorsed on said check.

[4] It will thus be seen that the offense is set forth in substantially the language of the statute in each count of the indictment, and the charge in each count is made in language clear and unequivocal.The indictment, and each count thereof, charges the offense with such degree of certainty that the court could pronounce judgment according to the right of the case, and is therefore sufficient.Section 2062, Burns 1914.An indictmentso framed as to inform the defendant of the charge which he is required to meet is sufficient.Brunaugh v. State, 173 Ind. 483, 90 N. E. 1019.

[5] In relation to offenses created by statute, the statute contains a definition of the offense.The offense consists in the commission of certain acts under specified circumstances, and in some cases with particular intent, and an indictment founded on the statute must, with certainty and precision, charge the defendant with having committed or omitted the acts under the circumstances and with the intent mentioned in the statute.Archib.Crim. Plead. (1st Am. Ed.) 23;State v. Stimson, 24 N. J. Law, 23.

The appellant contends that the same rules of pleading should apply in this case as are applicable in cases of embezzlement; and cites State v. Winstandley, 154 Ind. 443, 57 N. E. 109;State v. Winstandley, 155 Ind. 290, 58 N. E. 71;Sherrick v. State, 167 Ind. 345, 79 N. E. 193;Vinnedge v. State, 167 Ind. 415, 79 N. E. 353;andWright v. State, 168 Ind. 643, 91 N. E. 660-in support of such contention.These cases are not applicable, because they were prosecutions under statutes declaring the charged offense to be embezzlement.

The case of Moore v. United States, 160 U. S. 268, 16 Sup. Ct. 294, 40 L. Ed. 422, was a prosecution for embezzlement; and in that case it was held that to make a good charge for embezzlement all the ingredients of fact that are elemental to the definition must be alleged, so as to bring the defendant clearly within the statute.If that can be done by simply following the words of the statute, that will do; if not, other allegations must be used.In the case of the United States v. Northway, 120 U. S. 327, 7 Sup. Ct. 580, 30 L. Ed. 664, it was held that the word “embezzle” was recognized as having a settled technical meaning of its own.

In the case of State v. Winstandley, 154 Ind. 443, 57 N. E. 109, it was held that the same rules of pleading applicable in the prosecution of an official for embezzlement are to be accepted in determining the sufficiency of an indictment against bank officials for receiving bank deposits when the bank is insolvent.

In Hinshaw v. State, 122 N. E. 418, the court in commenting on section 2294, Burns 1914, the section of statute upon which that prosecution was founded, says:

“It will be noted that the Legislature in defining the crime says that whoever takes a deposit under the conditions designated in the statute shall be deemed guilty of ‘embezzlement.’The judicial interpretation of this statute had been that the Legislature intended that the requisites of pleading with reference to embezzlement were to be applied in determining the validity of indictments under this statute.It is fundamental that in embezzlement the taking and receiving part of the charge must be connected and coupled with the statement that such taking and receiving was by virtue of the office, or the agency, or the employment.These principles of pleading were well established before the act in question was passed by the Legislature, and this particular act has been interpreted by this court.State v. Winstandley, 154 Ind. 443, 57 N. E. 109;State v. Winstandley, 155 Ind. 290, 58 N. E. 71;Vinnedge v. State, 167 Ind. 415, 79 N. E. 353;Wright v. State, 168 Ind. 643, 81 N. E. 660.”

[6] In the present case the offense charged is not defined as embezzlement.Therefore said decisions cited by appellant can have no force in determining the sufficiency of the indictment.The description of the money called for in the check described in the second count of the indictment as “three thousand ($3,000) dollars lawful and current money of the United States” was a sufficient...