Nichols v. State

• Decision Date: 09 January 1896
• Citation: 46 Neb. 715,65 N.W. 774
• Parties: NICHOLS v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 715

65 N.W. 774

NICHOLS

v.STATE.

Supreme Court of Nebraska.

Jan. 9, 1896.

Syllabus by the Court.

1. The law presumes that the relation existing between a bank and its customer is that of ordinary debtor and creditor.

2. Whether a deposit made in a bank by its customer is a general or special one is a question of fact to be determined from the intention of the parties, but, in the absence of evidence, the law presumes such a deposit a general one.

3. Where a customer of a bank, who has overdrawn, and thus stands indebted in open account to the bank, makes a general deposit therein, the presumption of law is that such deposit was made and received towards the payment of such overdraft.

4. The object of the enactment of sections 637, 638, Comp. St. 1895, was to prevent an insolvent banking association from borrowing money,--that is, receiving money on deposit, and becoming debtor therefor; but said sections should not be so construed as to render an officer of a banking association guilty of a felony for permitting a debtor of the association to pay his debt thereto, even though the association is at the time, to the officer's knowledge, insolvent.

5. N. was indicted for receiving a deposit in a bank of which he was cashier, knowing at that time the bank was insolvent. The state, to sustain the indictment, offered evidence which tended to show the existence of the bank; that N. was its cashier; that it was insolvent, to his knowledge, on the 18th of February, 1895; and that on said date one M. deposited in said bank $11. N. then offered to prove that when M. made such deposit he was overdrawn at the bank $15.30. The court excluded the offer. Held, that the evidence offered tended to show that the deposit made by M. and accepted by N. was intended by the parties to apply towards the payment of M.'s debt to the bank; and that, so long as N. remained lawfully in charge of the bank as its cashier, he had the right to accept money in payment of any debt owing by any person to the bank; and that, therefore, the court erred in excluding the evidence offered.

Error to district court, Sherman county.

Albert T. Nichols was convicted of receiving a deposit in a bank knowing of its insolvency, and brings error. Reversed.

H. M. Sullivan and Wall & Burrows, for plaintiff in error.

A. S. Churchill, Atty. Gen., Geo. A. Day, Dep. Atty. Gen., and Long & Mathew, for the State.

RAGAN, C.

In the district court of Sherman county Albert T. Nichols was convicted of the crime of receiving a deposit in a bank of which he was cashier, the bank then and there being, to his knowledge, insolvent; and sentenced to a term in the penitentiary. He brings the judgment of the district court here for review. There are numerous errors assigned and argued here for the reversal of this judgment, of which we shall notice only one. Section 22, c. 8, Comp. St., provides: “No bank, corporation, partnership, firm, or individual transacting a banking business in this state shall accept or receive on deposit for any purpose any money, bank bills, U. S. treasury notes, or currency or other notes, bills, checks, drafts, credits, or currency when such bank, corporation, partnership, firm, or individual is insolvent.” And section 23 provides: “If any bank, corporation, partnership, firm, or individual transacting a banking business in this state shall receive or accept on deposit any such deposits as are named and set forth in section twenty-two (22) when said bank, corporation, partnership, firm or individual is insolvent any officer, director, cashier, manager, member of the partnership or firm, individual or managing party thereof, who shall knowingly receive or accept, be accessory to, or permit or connive at the receiving or accepting on deposit therein or thereby such deposits as aforesaid, shall be guilty of a felony,” etc. The information charged that Nichols, being the cashier of the People's State Bank of Litchfield, a banking corporation organized under the laws of the state and doing business in said Sherman county, on the 18th day of February, 1895, received a money deposit of $11 from one Henry Miller, the said People's State Bank of Litchfield being then and there, to the knowledge of the said Nichols, insolvent. On the trial the state produced evidence showing the existence of the banking corporation, that Nichols was cashier...