State v. Boomer

• Decision Date: 09 October 1897
• Citation: 72 N.W. 424,103 Iowa 106
• Parties: STATE v. BOOMER.
• Court: Iowa Supreme Court

103 Iowa 106

72 N.W. 424

STATE

v.BOOMER.

Supreme Court of Iowa.

Oct. 9, 1897.

Appeal from district court, Allamakee county; A. N. Hobson, Judge.

The defendant was accused and convicted of the crime of fraudulent banking, and from the judgment, which required that he be imprisoned in the penitentiary at Anamosa at hard labor for the term of five years, he appeals. Affirmed.Dayton & Dayton, Stilwell & Stewart, and H. T. Reed, for appellant.

Milton Remley, Atty. Gen., E. M. Woodward, Co. Atty., and J. H. Trewin, for the State.

ROBINSON, J.

The indictment charges “that said B. F. Boomer, at the county of Allamakee, state of Iowa, on or about the 15th day of August, 1893, was engaged in the banking business at Waukon, in said county and state, under the name and style ‘Bank of Waukon, Boomer Bros.,’ and he, the said B. F. Boomer, the Bank of Waukon, and Boomer Bros., were then and there insolvent; and while and when he, the said B. F. Boomer, the Bank of Waukon, and Boomer Bros., were so insolvent, and while and when he, the said B. F. Boomer, was so engaged in the banking business at the time and place aforesaid, he, the said B. F. Boomer, then and there being president and manager of said Bank of Waukon, did, knowing of such insolvency as aforesaid, knowingly and unlawfully receive on deposit in said Bank of Waukon, from one Michael Regan, the sum of two hundred dollars, in lawful money of the United States, a particular description of which is to the grand jurors unknown, contrary to and in violation of the laws of the state of Iowa.” The evidence authorized the jury to find that the following were established facts: In the year 1878 the defendant and his brother J. H. Boomer commenced the banking business at Waukon, under the name of the “Bank of Waukon, Boomer Bros.” The capital of the bank belonged to the defendant, but his brother, who acted as cashier, was to have one-half of the profits of the business after paying the defendant interest on one-half of the capital.In the year 1891, J. H. Boomer moved to South Dakota, and does not appear to have had any interest in the bank after that time, although his name continued to appear as cashier. The bank was carried on thereafter by the defendant, but without any change in the name. He did not personally keep the books of the bank, but was advised as to its condition. In addition to the banking business, he was engaged in buying and selling live stock. In the spring of the year 1893, the First National Bank of Waukon was organized, and in June commenced doing business; and the defendant became the owner of a part of its capital stock, and arranged to transfer to it the banking part of his business. The business of both banks was thereafter carried on in the same room, the defendant using the back part of it for the Bank of Waukon and for his stock business. Nearly all of the banking business was, in fact, transferred to the First National Bank; and the defendant insists that he had ceased to do a banking business at the time the transaction for which he was indicted took place. But it is shown that the Bank of Waukon continued to receive occasional deposits. On the 15th day of August, 1893, that bank received from Michael Regan $200 in money, and gave to him a certificate, of which the following is a copy:

Certificate of deposit not subject to check.

“Bank of Waukon,

Boomer Brothers,

Waukon, Iowa, Aug. 15, 1893.

Michael Regan has deposited in this bank two hundred dollars, payable to the order of himself in current funds on the return of this certificate properly indorsed, 12 months after date, with interest at 5 per cent. per annum for the time specified only.

Matures 8, 15, '94.

J H. Boomer, Cashier.”

Within a week after that time, the defendant gave mortgages and transferred property to a large amount for the purpose of securing debts, and the Bank of Waukon was closed.

The state claims that the money was received from Regan in violation of chapter 153 of the Acts of the 18th General Assembly, which contains the following:

“Section 1. No bank, banking house, exchange broker, deposit office, or firm, company, corporation, or party engaged in the banking, broker, exchange, or deposit business, shall accept or receive on deposit, with or without interest, any moneys, bank bills or notes, or United States treasury notes, or currency or other notes, bills or drafts circulating as money or currency, when such bank, banking house, exchange broker, or deposit office, firm or party is insolvent.

Sec. 2. If any such bank, banking house, exchange broker, or deposit office, firm, company, corporation, or party, shall receive or accept on deposit any such deposits aforesaid, when insolvent, any officer, director, cashier, manager, member, party, or managing party thereof, knowing of such insolvency, who shall knowingly receive or accept, be accessory, or permit or connive at the receiving or accepting on deposit therein, or thereby, any such deposits as aforesaid, shall be guilty of a felony. * * *”

1. At the close of the evidence, the defendant asked the court to direct a verdict of not guilty on several grounds, one of which was that there was a material variance between the indictment and the proofs. The alleged variance was as follows: The indictment charges that the deposit in question was “in lawful money of the United States, a particular description of which is to the grand jurors unknown”; while the proof failed to show that it was in coin of the United States or notes or certificates which it was required to redeem. The testimony of the employé who received the deposit was that it was $200; that it was currency, but that he did not notice “whether it was national currency or greenbacks or silver certificates”; that there “might have been a gold certificate.” It is not claimed that, to constitute the offense of fraudulent banking by receiving a deposit when the bank or person receiving it is insolvent, it is essential that the deposit consist of money issued by the United States. The language of the statute cited leaves no room for such a claim, but includes “all currency or other notes, bills or drafts circulating as money or currency.” The claim is that the proof must conform strictly to the charge, even though that be made with unnecessary particularity. There are undoubtedly many decisions which tend to sustain that claim. 1 Greenl. Ev. § 65. In State v. Newland, 7 Iowa, 242, the indictment charged that the defendant passed counterfeit bills which purported to have been issued by “a corporation duly authorized for that purpose, by the state of Massachusetts”; and it was held incumbent on the state to prove that averment. So, in State v. Crogan, 8 Iowa, 523, where the indictment charged that the defendant kept a place resorted to for the purpose of gambling, in a building on a lot specified, it was held that, although it was unnecessary to have described the location of the place further than to show the proper venue, yet, as it was more specifically described, the proof must show that the place was on the lot specified. Those cases did not arise under the statutes which govern this case. Section 4305 of the Code of 1873 provides that an indictment “is sufficient if it can be understood therefrom: * * * (5) That the act or omission charged as the offense, is stated with such a degree of certainty, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon a conviction according to the law of the case.” Section 4306 provides that “no indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any of the following matters: * * * (4) For any surplusage or repugnant allegation, or for any repetition, when there is sufficient matter alleged to indicate clearly the offense and the person charged; nor (5) for any other matter which was formerly deemed a defect or imperfection, but which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” The case of State v. Hesner, 55 Iowa, 494, 8 N. W. 329, arose under those statutes, and is especially relied upon by the appellant. In that case the indictment charged the defendant with the crime of selling intoxicating liquor known as “whisky,” in violation of law; and it was held that an instruction which authorized a conviction on proof of the sale of intoxicating liquors other than whisky was erroneous. But the charge that the defendant was guilty of selling whisky illegally was so specific and definite as to be well calculated to exclude, by implication, illegal sales of other liquors, and thus mislead the defendant, to his injury, in the preparation of his defense. That case is so unlike this in important particulars as not to be in point. The deposits which the statute which creates the offense of fraudulent banking is designed to prevent are of any kind of money, bank bills, or notes, treasury notes issued by the United States, currency, or other notes, and b...