State v. Burke

• Decision Date: 09 October 1928
• Citation: 270 P. 756,126 Or. 651
• Parties: STATE v. BURKE ET AL.
• Court: Oregon Supreme Court

270 P. 756

126 Or. 651

STATE v. BURKE ET AL.

Supreme Court of Oregon

October 9, 1928

In Bank.

Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.

On rehearing. Denied.

For original opinion, see 269 P. 869.

BROWN J.

The defendant petitions this court for a rehearing, upon the ground that the court erred in holding that the indictment charged a crime under the statute; in denying defendant's motion for a directed verdict; in admitting testimony to the effect that the United Meat Company was insolvent: in allowing testimony to be admitted showing the insolvency of the United Meat Company more than 20 days after the check in question had been cashed; in affirming a judgment based upon an inference not deduced from facts proved; in affirming the judgment in the face of the alleged failure of the evidence to disclose the defendant's connection with the crime charged.

The defendant, a bank president, was convicted of the crime of misapplication of its funds, as defined by Or L. Supp. 1927, p. 1403, § 187. For a copy of the indictment together with statement of the facts in the case and the statute under which the action is prosecuted, see 269 P. 869. In sustaining the indictment in our former decision, this court followed the holding in the cases of State v. Kubli, 118 Or. 5, 244 P. 512, and State v. Owen, 119 Or. 15, 244 P. 516, both of which were based upon the violation of the statute involved herein.

It is fundamental that, in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury, and to be fully informed of the nature and cause of the accusation. Const. Or. art. 1, § 11. It is the office of an indictment fully to inform the accused of the nature and cause of the accusation that he is called upon to meet. Any indictment which fails in this is defective. An indictment for a statutory offense is sufficient if the crime be charged in the words of the statute or their equivalent. This is a general rule. This rule, however, is limited in application to causes where the words of the statute directly and expressly inform the accused of the nature and cause of the accusation against him. Article 1, § 11, Const. Or.; Evans v. U. S., 153 U.S. 584, 14 S.Ct. 934, 38 L.Ed. 830. Under the terms of section 1440, Or. L., and article 1, § 11, of our Bill of Rights, the indictment must charge the commission of the crime with directness and certainty, and every element of which it is composed must be concisely and clearly alleged.

The statute involved herein was adopted from the Federal Code. It is a general rule of construction of statutes that, when the lawmaking power of one state adopts a statute from another state, the construction theretofore given to the act by the court of last resort of the state from which the statute was borrowed becomes a part of the statute. In other words, the statute is adopted, together with its interpretation. Dale v. Marvin, 76 Or. 528, 148 P. 1116, 1151, Ann. Cas. 1917C, 557; School Dist. No. 45 v. Hallock, 86 Or. 687, 169 P. 130; Studley v. Luse, 89 Or. 338, 173 P. 1182; State v. Stilwell, 100 Or. 637, 198 P. 559. In Auld v. Star-bard, 89 Or. 284, 173 P. 664, it was held that, where a law, after having been construed by the court of last resort in the state where it was originally enacted, is adopted in Oregon, the interpretation thus given, though not binding upon the courts of this state, affords persuasive argument that it should be followed here. This applies with equal force to laws enacted by the Congress of the United States and adopted by any one of the several states; and, in conformity therewith, we adopt the interpretation placed upon the statute in question by the federal court. For a valuable note on the subject of construction of adopted statutes, see Ann. Cas. 1917B, 651.

But the statute involved in no way affects the law of our state with reference to criminal pleading. As the writer understands it, the following excerpt from Terrell, Crimes by National Bank Officers and Agents, pp. 29, 30, 31, is an accurate statement of the law:

"One of the most prevalent forms of misapplying or abstracting the moneys and funds of a bank by its officers or agents is by overdrawing their accounts. If an officer or agent of a national bank, knowing that he has no money to his credit in the bank, and no right to draw money therefrom, obtains money from the bank to which he has no right by means of an overdraft, with intent to defraud, and converts the same to his own use in fraud of the bank, he commits an offense against section 5209, Revised Statutes. * * * Its intention (the statute) was to punish certain acts which it describes, when such acts are done by one holding the relation to the bank of president, director, cashier, teller, clerk or agent. Among the acts enumerated is the act of misapplying money of the association, and a conversion by an officer of money of the bank, of which he has acquired the possession or control by means of his overdraft, drawn without right, and with intent to defraud, would constitute a misapplication of the money of the association within the meaning of the statute.

"The same is true where an officer of a bank with fraudulent intent discounts paper of or permits an insolvent outsider to overdraw his account in the bank.

"If an officer of a bank knowingly and unlawfully, and with intent to injure or defraud the bank, willfully misapplies the moneys, funds, or credits of the bank, by cashing, discounting and paying for the use and benefit of another, knowing him to be insolvent, out of the moneys, funds, and credits of the bank, any notes, drafts, or bills of exchange, drawn by and upon insolvent persons, firms and companies, knowing them to be insolvent, and knowing such notes, drafts, or bills of exchange to be valueless, he would be guilty of willful misapplication of the bank's moneys, funds and credits."

To like effect, see Atwell, Federal Criminal Law Procedure, p. 601.

We have seen that the indictment charges, among other things, that the defendant, feloniously and willfully, with intent to injure and defraud the bank of Kenton, misapplied and converted to the use, benefit, gain, and advantage of United Meat Company, a corporation, $3,669.10 of the moneys of that bank, knowing that the bank was receiving no consideration therefor. 12 C.J. 525, defines the term "consideration" thus:

"It means something of value in the eye of the law; something in the way of price or compensation, which may be of value to the obligor, or of detriment to the obligee; a benefit to the party promising, or a loss to the person to whom the promise is made; material cause of the contract, without which it will not be effectual or binding; the

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