State v. Burke
| Decision Date | 31 July 1928 |
| Citation | 126 Or. 651,269 P. 869 |
| Parties | STATE v. BURKE ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.
J. V Burke was convicted of willfully misapplying funds of a state bank, and he appeals. Affirmed.
The appealing defendant was convicted in the circuit court of the state of Oregon for Multnomah county, of the crime of willfully misapplying the funds of a state bank. The charging part of the indictment upon which the prosecution was based reads:
"The said J. V. Burke, on the 13th day of November, A. D. 1926 in the said county of Multnomah and state of Oregon, then and there being, and the said R. R. Thatcher on the said 13th day of November, A. D. 1926, in the county of Multnomah and state of Oregon then and there being, and the said J. V. Burke being then and there an officer, to wit the president, and the said R. R. Thatcher being then and there an officer, to wit, the cashier, of the Bank of Kenton, a state bank duly created, organized, and existing under and by virtue of the laws of the state of Oregon, and doing and carrying on a banking business in the city of Portland, in the county and state aforesaid, and the said J. V. Burke and R. R. Thatcher as such officers, that is as such president and cashier respectively, then and there having the custody, control, and care of the moneys, funds, credits, and property of said bank, did then and there, by virtue of being such officers of said bank, and by virtue of their offices as president and cashier, respectively, of said bank, wrongfully, unlawfully, feloniously, and willfully, with intent then and there on the part of them, and each of them, to injure and defraud said bank, misapply and convert to the use, benefit, gain, and advantage of United Meat Company, a corporation, and one A. A. Hallander and one David D. Briggs, certain moneys, funds, credits, and property of said bank, to the amount and of the value of $3,669.10, lawful money of the United States of America, a more particular description of which said property is to the grand jury unknown, from and out of the moneys, funds, credits, and property of said bank, by then and there paying and causing said sum to be paid out of such moneys, funds, credits, and property of said bank on a check in the said sum of $3,669.10, drawn upon said bank by the said A. A. Hallander as president, and the said David D. Briggs as secretary, of United Meat Company, a corporation, and dated November 13, 1926, which check was then and there by the said J. V. Burke and the said R. R. Thatcher cashed and paid out of such moneys, funds, credits, and property of the said bank, neither the said United Meat Company, a corporation, nor the said A. A. Hallander, either as president of said United Meat Company, a corporation, or as an individual, nor the said David D. Briggs, either as secretary of said United Meat Company, a corporation, or as anindividual, then or there having any moneys, funds, credits, or property in said Bank of Kenton to pay said check, and they, the said J. V. Burke and the said R. R. Thatcher, and each of them, then and there well knowing that neither the said United Meat Company, a corporation, nor the said A. A. Hallander, either as president of said United Meat Company, a corporation, or as an individual, nor the said David D. Briggs, either as secretary of said United Meat Company, a corporation, or as an individual, had any moneys, funds, credits, or property in said Bank of Kenton to pay said check, and that the said bank had received no consideration for the same, and that neither the said United Meat Company, a corporation, nor the said A. A. Hallander, either as president of said United Meat Company, or as an individual, nor the said David D. Briggs, either as secretary of said United Meat Company, or as an individual, was entitled to withdraw said sum of $3,669.10 or any other sum whatsoever from said bank; that all of said acts as aforesaid were done by the said J. V. Burke and the said R. R. Thatcher with intent to injure and defraud said bank. * * *"
Upon arraignment, and at some time previous to trial, defendant Thatcher entered a plea of guilty to the charge contained in the indictment. Defendant Burke demurred to the indictment on the following grounds: First, that it failed to state facts sufficient to constitute a crime; second, that it did not substantially conform to the requirements of Oregon Laws, tit. 18, c. 7; third, that it charged more than one crime; fourth, that it was bad for duplicity.
The demurrer was overruled, and on trial the defendant was convicted as charged. The assignments of error on appeal relate to the court's ruling on the indictment, upon certain motions, the reception of evidence, and the instructions.
In prosecution of bank president for misapplying bank funds by cashing fraudulent check of own company, bank ledger sheets relating to account of company and bank's ledger sheet covering account of payee of check held admissible in prosecution of president for misapplying funds. Or.L.Supp.1927, p. 1403, § 187.
Chester A. Sheppard, of Portland (Sheppard, Phillips & Ralston and Oscar Furuset, all of Portland, on the brief), for appellant.
Leon W. Behrman and George Mowry, Deputy Dist. Attys., both of Portland (Stanley Myers, Dist. Atty., and John Mowry, Deputy Dist. Atty., both of Portland, on the brief), for the State.
BROWN, J. (after stating the facts as above).
Section 187, c. 207, General Laws of Oregon 1925, codified as Or. L. Supp. p. 1403, reads:
"Every owner, officer, director or employee of any bank or trust company who embezzles, abstracts or willfully misapplies any of the money, funds, credits, assets or property of such bank or trust company, whether owned by such bank or trust company or held for safe keeping or as agent, or held in trust, or who, without authority of the board of directors of such bank or trust company, issues or puts forth any certificate of deposit, draws any order, draft or bill of exchange, makes acceptance, assigns any note, bond, draft, bill, bill of exchange, mortgage, judgment or decree, or who makes any false entry in the books or statements of the bank or trust company, with the intent in either case to injure or defraud such bank or trust company, or deceive any officer of such bank or trust company, or any person who with like intent aids or abets any owner, officer, director or employee of any bank or trust company, in violation of this section shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by a fine of not more than $5,000 or by imprisonment in the state penitentiary not less than one year nor more than twenty years, or by both such fine and imprisonment, in the discretion of the court."
On May 14, 1909, the Bank of Kenton was incorporated as a state bank, with a capital stock of $50,000, divided into 500 shares, of the par value of $100 each. The original incorporators were H. W. Mahan, J. W. Sifton, and Geo. F. Heusner. Its principal place of business was at Kenton, a suburb of the city of Portland. At the time of its organization, or shortly thereafter, J. V. Burke, defendant herein, was elected vice president, and, at the time of the alleged offense charged in the indictment, held the office of president. Burke was likewise a stockholder, director, and vice president of the United Meat Company, the corporation referred to in the indictment. The certificate of the state bank examiner authorizing the bank to engage in business was issued on October 8, 1909. It closed its doors as a going concern on December 3, 1926, about 20 days after the payment of the alleged fraudulent check out of its funds. A few days later the United Meat Company, a corporation, the drawer of the check, went into the hands of a receiver, where it yet remained at the closing of the record made in this cause.
So far as material to this case, the by-laws adopted by the Bank of Kenton on its organization provide:
State's Exhibit 6 for identification reads:
The defendant asserts that the indictment is...
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