Jacobs v. State
| Decision Date | 30 April 1936 |
| Docket Number | 26494. |
| Parties | JACOBS v. STATE. |
| Court | Indiana Supreme Court |
Milton K. Jacobs was convicted of the crime of banker's embezzlement, and he appeals.
Reversed, with instructions.
Appeal from Steuben Circuit Court; Doak R. Best, Special judge.
Walter D. Stump, of Auburn, Mountz & Mountz, of Garrett, Dudley W. Gleason, of Angola, and Samuel E. Hirsch of Chicago, Ill., for appellant.
Philip Lutz, Jr., Atty. Gen., and Caleb J. Lindsey, Asst. Atty Gen., for the State.
Appellant was indicted for the crime of banker's embezzlement, which consists in accepting a deposit when a bank is insolvent. Upon the first trial the jury disagreed. Upon the second trial appellant was convicted.
Error is predicated upon the overruling of a motion for a new trial.
The following instruction was given:
‘ In determining whether or not the deposit charged to have been made was unlawfully, feloniously and fraudulently received by the defendant, Milton K. Jacobs, it is the law that if such Banking Company was insolvent at the time such deposit was received, and such insolvency was known to the defendant, or if the defendant could have known of such insolvency, if such insolvency in fact existed, by the exercise of ordinary care and diligence to ascertain such fact, if such fact existed, then such deposit was unlawfully, feloniously and fraudulently received by the defendant, whether the defendant did or did not actually at the time intend to defraud the depositor.
‘ If you find from the evidence that the Noble County Bank and Trust Company suspended its business within thirty days from the time of receiving such deposit, then such suspension is prima facie evidence that the taking and receiving of such deposit was unlawful, felonious and fraudulent, and such presumption, in the absence of evidence to the contrary, would warrant the conviction of the defendant, so far as this element in the charge in the affidavit is concerned.
‘ The absence of such knowledge on the part of the defendant, of insolvency, if such insolvency in fact existed, would prevent the conviction of the defendant in this cause, unless such lack of knowledge was the result of a lack of ordinary care and diligence on his part to ascertain the true condition of such Banking Company at such time.’
The theory upon which the case was tried is disclosed by this instruction and others of similar character.
In Walter v. State (1935) 208 Ind. 231, 195 N.E. 268, 272, 98 A.L.R. 607, it was held that the statute (Burns' Ann.St.1926, § 2479) which provides that a bank's failure, suspension, or involuntary liquidation within thirty days after a deposit is received constitutes prima facie evidence of fraudulent intent in receiving the deposit, is an invasion of the constitutional right to have the jury determine the facts; and in the same case it is held that the embezzlement statute contemplates proof of fraudulent intent, and that proof of mere negligence, or lack of ordinary care to ascertain the bank's condition, is not sufficient. Upon the authority of that case, in which the several instructions involving these questions are almost identical with the ones in the case at bar, this case must be reversed.
In Green v. State (1933) 204 Ind. 349, 184 N.E. 183, 87 A.L.R. 1251, and Powers v. State (1933) 204 Ind. 472, 184 N.E. 549, 86 A.L.R. 166, the questions presented involve the admissibility of testimony, and it was held that incompetent evidence may not be made competent and admissible by legislative enactment; that the Legislature may not create evidence, or make something evidence of a fact which is not of itself evidence of that fact. In Walter v. State, supra, and Gillian v. State (1935) 207 Ind. 661, 194 N.E. 360, instructions were considered, and it was held that, under the Constitution, neither the Legislature by enactment nor the court by instructions may determine what is prima facie evidence of an ultimate fact; that is to say, sufficient evidence to establish an ultimate fact, such as criminal intent. Any instruction, whether or not it is based upon a legislative enactment, which undertakes to tell the jury that certain evidence is sufficient to establish the ultimate fact of criminal intent, or any other ultimate fact, or to create a presumption of such an ultimate fact, invades the constitutional province of the jury.
The case of State v. Beach (1897) 147 Ind. 74, 43 N.E 949,46 N.E. 145,36 L.R.A. 179, relied upon by the state, was modified in Green v. State, supra, and expressly overruled in Powers v. State, supra. The other case relied upon, State v. Cadwallader (1900) 154 Ind. 607, 57 N.E. 512, is criticized in Walter v. State, supra, where it is pointed out that the court went no...
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