State v. Bevins, 39449.

Citation210 Iowa 1031,230 N.W. 865
Decision Date16 May 1930
Docket NumberNo. 39449.,39449.
PartiesSTATE v. BEVINS.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Fayette County; W. L. Eichendorf, Judge.

The defendant was indicted and tried for wrongfully receiving a deposit for and on behalf of the First State Bank of Hawkeye. It is claimed by the state that said bank was insolvent, and that the defendant knew of such impaired financial status when accepting the deposit. A plea of “not guilty” was entered, and, after a trial, the jury returned a verdict of “guilty.” Sentence was imposed accordingly. From this, the defendant appeals.

Affirmed.John H. Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., Leon R. Layton, Co. Atty., of West Union, and Senneff, Bliss, Witwer & Senneff, Sp. Counsel, of Mason City, for the State.

M. M. Cooney, of West Union, and Geiser, Donohue & Geiser, of New Hampton, for appellant.

Jaques, Tisdale & Jaques and Gilmore & Moon, all of Ottumwa, A. L. Heminger and J. C. Calhoun, both of Keosauqua, and McCoid, McCoid & McCoid, of Mt. Pleasant, amici curiæ.

KINDIG, J.

The First State Bank of Hawkeye, during all the times here material, was a banking corporation organized under the Iowa law. S. H. Bevins, defendant-appellant, was the president thereof. It is charged in the indictment that the appellant, on April 5, 1927, willfully, unlawfully, intentionally, knowingly, and feloniously received and accepted, “on and for deposit in the First State Bank of Hawkeye, Iowa, and for and on behalf of said bank, the sum of $29.85.” Furthermore, it is alleged in the indictment that the appellant then and there “well knew of such insolvency.” This deposit was made by Emma Hehmke.

Foundation for the indictment is two sections of the 1927 Code. They are:

“9279. No bank, banking house, exchange broker, deposit office, firm, company, corporation, or person engaged in the banking, brokerage, exchange, or deposit business, shall, when insolvent, accept or receive on deposit, with or without interest, any money, bank bills or notes, United States treasury notes or currency, or other notes, bills, checks, or drafts, or renew any certificate of deposit.”

“9280. If any such bank, banking house, exchange broker, deposit office, firm, company, corporation, or person shall receive or accept on deposit any such deposits, as aforesaid, when insolvent, any owner, officer, director, cashier, manager, member, or person knowing of such insolvency, who shall knowingly receive or accept, be accessory, or permit, or connive at receiving or accepting on deposit therein, or thereby, any such deposits, or renew any certificate of deposit, as aforesaid, shall be guilty of a felony, and, upon conviction, shall be punished by a fine not exceeding ten thousand dollars, or by imprisonment in the penitentiary for a term of not more than ten years, or by imprisonment in the county jail not more than one year, or by both fine and imprisonment.”

Appellant asks that the judgment of conviction be reversed. Many reasons are assigned therefor. These reasons are divided into two general subjects. One subject relates to the constitutionality of the aforesaid statutes, and the other has to do with alleged errors claimed to have occurred during the trial. Those assigned reasons for reversal raising constitutional questions are:

First. “That sections 9279 and 9280 of the 1927 Code are unenforceable provisions of the law.” Such, appellant asserts, is true because in Easton v. Iowa, 188 U. S. 220, 23 S. Ct. 288, 47 L. Ed. 452, the United States Supreme Court declared that said legislation could not be applied to national banks. Because the language of sections 9279 and 9280 is general, appellant insists that the void and unenforceable portion thereof, condemned in the Easton Case, cannot be separated from those parts which might otherwise be valid and legal. Hence appellant concludes that the entire law must fail under the established theories of statutory construction; and

Second. That said sections 9279 and 9280, even if the Easton Case did not make them unenforceable, are void because in conflict with the Fourteenth Amendment to the United States Constitution, and article 1, section 9, of the Iowa Constitution. His reason for so contending is that insolvency, as used in the state legislation aforesaid, is so indefinite and uncertain that it cannot be known when an act becomes criminal and punishable as such.

On the other hand, the before mentioned grounds for reversal, other than the constitutional questions just stated, have to do with the purported errors occurring during the trial, including the wrongful admission of testimony, erroneous instructions, and improper arguments. Full and careful consideration of all the propositions above enumerated, including the constitutional questions, as well as the others, compels the conclusion that appellant's contentions are without merit. For convenience sake, the foregoing propositions will now be considered in the order named.

I. Does Easton v. Iowa, 188 U. S. 220, 23 S. Ct. 288, 47 L. Ed. 452, make unenforceable sections 9279 and 9280, above quoted? That is the first question.

In State v. Fields, 98 Iowa, 748, 62 N. W. 653, the Iowa Supreme Court held that the statutory sections aforesaid included national banks and national bankers. Subsequently the same conclusion was reached in State v. Easton, 113 Iowa, 516, 85 N. W. 795, 86 Am. St. Rep. 389. Easton, by writ of error, asked the United States Supreme Court to review the holding of the Iowa Supreme Court. Upon that review, the United States Supreme Court reversed the judgment of the Iowa Supreme Court on the theory that legislation concerning national banks was under the control of Congress alone, and the state Legislature, under the circumstances, did not have jurisdiction over such federal institutions. Since that time the Iowa Legislature did not re-enact, or in any way amend, the acts involved before the appellant in the case at bar was indicted. As before stated, the appellant uses the conclusion of the United States Supreme Court in that regard as a basis for saying that the statutory sections under consideration are now entirely unenforceable. This result is reached by appellant upon the theory that the general language contained in these sections includes national banks.

The Iowa Supreme Court, in the Fields and Easton Cases, held that national banks were included. When the Easton Case reached the Supreme Court of the United States, that tribunal accepted the statutory interpretation made by the Iowa Supreme Court, and discussed the problem accordingly. Consequently, appellant asserts that the language of the state legislation, being broad enough in its terms to include national banks, according to the Fields and Easton Cases, such portion of the phraseology which accomplished that result still remains. So, in view of the conclusion reached by the United States Supreme Court, said particular part of the law relating to national banks is void. Therefore appellant urges that these sections are entirely unenforceable for the reason that, the languagebeing general, the valid parts thereof cannot be separated from the invalid.

Basis for this contention is founded upon principles of statutory construction.

Statutes that are constitutional in part only, will be upheld, so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are severable.” Keokuk N. L. Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377.

Again the Supreme Court of the United States said, in Dorchy v. State of Kansas, 264 U. S. 286, 44 S. Ct. 323, 324, 68 L. Ed. 686: “A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. * * * But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.”

[1] Penal statutes are to be strictly construed, and appellant argues that the rule of statutory construction requiring severability is more stringent in a criminal than a civil case. At this juncture appellant cites Flannagan v. Jepson, 177 Iowa, 393, 158 N. W. 641, L. R. A. 1918E, 548;Butts v. Merchants' & Miners' Transportation Co., 230 U. S. 126, 33 S. Ct. 964, 57 L. Ed. 1422;Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550;Poindexter v. Greenhow, 114 U. S. 270, 5 S. Ct. 903, 962, 29 L. Ed. 185;Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, 15 S. Ct. 912, 39 L. Ed. 1108;United States v. Reese, 92 U. S. 214, 23 L. Ed. 563; Employers' Liability Cases, 207 U. S. 463, 28 S. Ct. 141, 52 L. Ed. 297; and other cases.

[2][3] While it is true, generally speaking, that a criminal statute is to be strictly construed, and that, under the rules of statutory construction, the valid portion of the legislation will not be enforced unless it can be separated from the invalid, yet, when the legal can be distinguished from the illegal, the statute will be upheld. That is true even though the statute is penal in its nature; for a statute, although penal, under proper circumstances may be so construed that the valid parts are retained and the invalid rejected. Much depends upon the circumstances and conditions. If such construction expresses the manifest desire of the Legislature, it should be made. Carey v. State of South Dakota, 250 U. S. 118, 39 S. Ct. 403, 63 L. Ed. 886. See, also, Latimer v. United States, 223 U. S. 501, 32 S. Ct. 242, 56 L. Ed. 526; 6 R. C. L. p. 132, § 131. The general principle of construction now under consideration has been many times used in determining the existence or validity of a particular civil or criminal statute.

[4] Said proposition has two phases. One relates to the application, and the other to the subject-matter of the statute. A statute, constitutional...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT