Moag v. State
| Decision Date | 10 February 1941 |
| Docket Number | 27401. |
| Citation | 31 N.E.2d 629,218 Ind. 135 |
| Parties | MOAG v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Montgomery Circuit Court; Howard L. Hancock, Special judge.
Harding & Harding and Foley & Foley, all of Crawfordsville for appellant.
Samuel D. Jackson, Atty. Gen., and James K. Northam, Dep. Atty Gen., for appellee.
Appellant was indicted for being an accessory before the fact to the crime of making a false entry in the records of a bank. He was tried by a jury and convicted and he has appealed assigning that the trial court erred in overruling his motion for a new trial. The specific propositions relied upon by the appellant may be grouped for consideration as follows: (1) The insufficiency of the evidence; (2) error in the admission and exclusion of evidence; and (3) error in giving and refusing certain instructions. The first proposition requires a statement of the charge and a review of the evidence.
It was alleged in the indictment that on August 7, 1934, and long prior thereto, the Tippecanoe Loan and Trust Company was a loan, trust, and safe deposit company incorporated under the laws of Indiana, with its principal office and banking house in the city of Lafayette; that Margaret A. Cheney was the duly elected, qualified, and acting secretary-treasurer of said company; that on and prior to the above date the company had and kept a certain record book called 'Daily Financial Statement,' for the purpose of showing in detail the financial condition both as to resources and liabilities of said trust company at the close of banking business on each day; that on said August 7th, Miss Chency made up a statement of the financial condition of the company for that day and recorded it in said book (a complete copy of the entry being set out in the indictment); that by said statement it appeared that the company owned and possessed miscellaneous bonds and stocks of the value of $632,886.42; that the aforesaid entry was false and known to be false to Miss Cheney when it was made and entered; and that on August 7, 1934, the appellant unlawfully and feloniously counseled and encouraged the commission of the crime imputed to Miss Cheney in the indictment.
The charge is predicated on § 1, chapter 103, Acts 1933, § 10-1713, Burns' 1933, § 2479, Baldwin's 1934, which is as follows: 'Any person engaged in the business of banking, or any officer, director, agent or employee of any person, firm or corporation engaged in the banking business in this state, who shall knowingly make, or cause to be made, any false entry in any book or record kept in any such bank or trust company, shall be deemed guilty of a felony, and upon conviction thereof shall be fined in any sum not to exceed one thousand dollars ($1,000), or be imprisoned in the state prison for any determinate period of not less than one (1) year or more than five (5) years, or both.'
The evidence is not substantially in dispute. It appears that the trust company operated as a going concern for the last time on August 7, 1934. During that day, the bank had been ordered closed by the Department of Financial Institutions, and on the 8th of August a representative of the department took charge before opening time. When the representative took over, he discovered that the daily financial statements had not been made up for about a week, and at his suggestion Miss Cheney compiled and supplied these, including the one for August 7th, upon which the charge was based.
The appellant urges that under the undisputed evidence the trust company was not 'engaged in the banking business,' in the sense contemplated by the statute, at the time the alleged false statement was made, because it had ceased operation and was under the control of the Department of Financial Institutions.
Statutes defining public offenses are to be strictly construed and this rule must be applied to the statute upon which this prosecution is based, including the clause 'corporation engaged in the banking business' found therein. If the evidence does not show that Miss Cheney was acting as an officer of the trust company and that the company was engaged in the banking business at the time Miss Cheney made the alleged false entry, the judgment of conviction cannot stand. We are not without authorities as to the meaning of 'banking business' as these words have been used from time to time in the statutes of this state. "The business of banking, as defined by law and custom, consists in the issue of notes payable on demand, intended to circulate as money where the banks are banks of issue; in receiving deposits payable on demand; in discounting commercial paper; making loans of money on collateral security; buying and selling bills of exchange; negotiating loans; and dealing in negotiable securities issued by the government, state and national, and municipal and other corporations." First Nat. Bank v. Turner, Treasurer, 1900, 154 Ind. 456, 460, 57 N.E. 110, 112; Merica v. Burget, 1905, 36 Ind.App. 453, 461, 75 N.E. 1083, 1086; Davis v. Sexton, County Treasurer, 1936, 210 Ind. 138, 153, 200 N.E. 233, 240. Recently, in considering the construction to be given to the clause 'every bank or banking company,' appearing in ...
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