State v. Cadwell

• Citation: 44 N.W. 700,79 Iowa 432
• Parties: STATE v. CADWELL ET AL.
• Decision Date: 07 February 1890
• Court: United States State Supreme Court of Iowa

79 Iowa 432

44 N.W. 700

STATE

v.CADWELL ET AL.

Supreme Court of Iowa.

Feb. 7, 1890.

Appeal from district court, Harrison county; GEORGE W. WAKEFIELD, Judge.

Indictment for fraudulent banking. From a judgment against defendants, they appeal.L. R. Bolter & Sons and J W. Barnhart, for appellants.

John Y. Stone, Atty. Gen., for the State.

GRANGER, J.

The defendants are indicted under chapter 153 of the Laws of the 18th General Assembly, which provides “that 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 * * * 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,” and that “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, as aforesaid, when insolvent, any officer, director, cashier, manager, member, party, or managing party thereof, knowing of such insolvency, who shall knowingly receive or accept * * * any such deposits as aforesaid, shall be guilty of a felony, and upon conviction shall be punished” as therein provided. The indictment in this case was returned about November 10, 1888. For some years prior thereto, the defendants had owned and managed two banks,--one known as “Cadwell's Bank,” at Logan, and the other known as “Boyer Valley Bank,” at Woodbine,--both in Harrison county. The indictment charges that on the 17th day of May, 1888, the defendants, as such bankers, were insolvent, and on that day they accepted and received from Mary E. Oliver, on deposit, $110. On the 9th day of October, 1888, the defendants, under the provisions of the statute, made a general assignment for the benefit of their creditors, and Stephen King was made their assignee. The record presents a number of questions which we will consider in their order.

1. At the time the deposit in question was, received, one John X. Aleck was cashier of defendants' bank at Logan, and issued the certificate; and at the time neither of the defendants were present. The certificate, against the objection of the defendants, was admitted in evidence; and the ruling is made a ground of complaint here. A specific ground of complaint in argument is that the defendants were indicted for receiving the deposit, and it is not competent to show on the trial that the money was received by another than the defendants personally. We think no such rule has ever been held by a court of last resort. On the contrary, a general and well-recognized rule is that, if a person does the act constituting the offense, through the agency of another, the act is his, and it is unnecessary to aver the agency in the indictment. It may be charged directly as his act, and proof that he did the act through the agency of another will sustain a conviction. Whart. Crim. Ev. (9th Ed.) §§ 102, 112; Whart. Crim. Law, (9th Ed.) § 522; State v. Neal, 7 Fost. (N. H.) 131; Com. v. Nichols, 10 Metc. 259; Com. v. Bagley, 7 Pick. 279;Stoughton v. State, 2 Ohio St. 562; Brister v. State, 26 Ala. 107. It is further said, in this connection, that the defendants are not charged with permitting or conniving at the receiving of the deposit, but with receiving it themselves, and that, under the averments of the indictment, the proofs as to Aleck's receiving the money are not admissible. The rule above announced is conclusive of this question. The defendants are indicted as a firm of bankers, and as such they are charged with receiving the money; and it is entirely immaterial whether they received it in person, or through their cashier. In law, if they permitted him to do it for them, they did it themselves.

Our attention is directed to Code, § 4298, to the effect that the indictment must be direct and certain as to the particular circumstances of the offense charged, when necessary to constitute a complete offense. The indictment in this case charges that the defendants, as such bankers, did, at a certain time and place, being then insolvent, receive the deposit in question. That is certainly a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Such alone is the requirement of the law. Code, § 4296. Under such averments, the state may prove that they received the deposits through the cashier of their bank.

Another point urged as against the admission of the certificate of deposit in evidence is that on its face it is evidence of money loaned, instead of a deposit, that the indictment charges the offense as receiving, and the law only makes it an offense to receive money on deposit. The certificate is as follows: “$110. Cadwell's Bank, Logan, Iowa, May 17, 1888. This certifies that Mrs. Mary E. Oliver has deposited in this bank one hundred and ten dollars, payable to the order of self, in current funds, on the return of this certificate properly indorsed. No. 2142. JOHN X. ALECK, Cashier.” It is true the transaction is, in a certain sense, a loan of money, but not in a sense to distinguish it from the deposit contemplated in the law. In banking circles, deposits are often qualified or distinguished as “time” and “call” deposits. The former is for a specified time, and the latter is subject to call at the pleasure of the depositor. In fixing the character of the transaction, we look to the intent of the act, making the receipt of deposits by an insolvent bank a crime. In some measure, we judge of that intent by looking to the evil to be remedied by it. It is a matter of common observation that deposits are made, in banks, upon an entirely different reliance as to security than in the investment of money as a “loan,” as the term is generally understood. Banks, in receiving deposits, offer no security, nor is security expected. The money is thus placed in a bank because of a confidence in its solvency and ability to repay, because of the fact that it is a bank; and this confidence continues, even in the face of the fact that it is so often misplaced. In the case of ordinary loans, the question of the solvency of the borrower, and the safety of the investment, is made a matter of prior investigation; and in many sections of the country a pledge of property as security is generally required. In making these deposits with banks without security, people make no distinctions in the character of the deposits; that is, whether they are “time” or “call” deposits. They are made with the same confidence in the solvency of the bank, and upon like terms as to security. The repeated instances in which this confidence has been betrayed, and depositors subjected to loss, led to the legislation referred to. Under the present law, no insolvent bank has the right to receive money on deposit. It is fair to presume that the legislature used the term “deposit” as it is ordinarily used in banking and commercialcircles, and we see no reasons for thinking the law designed a protection for the people against loss by one class of deposits, and not the other. The certificate designates the transaction as a “deposit,” and we think it clearly within the purview of the legislative purpose.

2. The deed of assignment was admitted in evidence, of which complaint is made. A claim especially urged in this respect is as to the difference in time between the deposit, May 17, 1888, and the assignment, October 7, 1888. In this there was no error. Such assignments are made because of insolvency, actual or contemplated. The deed of assignment tended to prove insolvency at the time it was made, which, it is true, was nearly five months after the deposit; but if it alone, or with other evidence, established the fact of insolvency at that time, that fact might be an aid in determining the true condition of the bank in May, by showing what changes had taken place in the property affairs of the firm in the mean time. To plainly illustrate, let it appear from other evidence that no change had taken place. Then, of course, there was insolvency in May. If changes, then what were they? And the fact is a question for the jury. It is true, as said in argument, that one may be free from debt in May, and hopelessly involved in October; but the October condition of the bank is not allowed to define or control that of May. It is only a link in the chain that establishes the ultimate fact.

3. W. H. Wood was a witness for the state. He was an accountant, and of some months' experience in a bank. He stated that he had examined the books of the two banks with reference to discovering assets that might not have been reported, and also as to the solvency or insolvency of the banks at different times. He was then asked: “Do you know now what the condition of Cadwell's and the Boyer Valley Bank was, as to the assets of those banks being sufficient to pay the indebtedness of said banks, on the 17th of May, 1888, confining yourself to the condition of the two banks financially? To this there was an objection on grounds that it was incompetent, not the best evidence, and called for a conclusion. The question, however, was not answered, more than to say he could not state the condition at that time, but it is important to understand the next question and the ruling. The question then was: “State, if you know, what the condition of these banks was on the 1st of January, 1888, as to being solvent or insolvent.” The same objection to this question was overruled, and the witness answered: “I think I do.” He then, under objections, stated that he thought them insolvent, and made the same statement as to their condition in October, 1888, at the time of the assignment. The witness was then...