State v. Cahn

• Decision Date: 17 December 1934
• Docket Number: 31348
• Citation: 171 Miss. 458,158 So. 202
• Court: Mississippi Supreme Court
• Parties: STATE v. CAHN et al

158 So. 202

171 Miss. 458

STATE v. CAHN et al

No. 31348

Supreme Court of Mississippi

December 17, 1934

Division B

1. BANES AND BANKING. Indictment charging bank officials with publishing false statement as to bank's condition held demurrable because allegations were too general (Code 1930 sec. 3832).

The indictment gave the date of a certain publication by defendants in a newspaper, but did not give the date on which condition described in publication existed, and, after charging in general language that statement represented resources of bank in various sums, or various kinds of property and securities, alleged that all of representations as to bank's condition were known to defendants to be false. The indictment further charged that the statement was made with unlawful intent to deceive named person but did not allege that statement was exhibited to him, and, if so, when or under what circumstances, and did not allege that any person was deceived thereby.

2. BANKS AND BANKING.

Statute prohibiting bank officials from publishing false statement as to bank's condition covers many different kinds of acts and indictment thereunder should select particular act and give specific information apprising accused of nature of crime (Code 1930, sec. 3832).

HON. J D. FATHEREE, Judge.

APPEAL from the circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

E. Cahn and another were indicted as bank officials for publishing false statement as to bank's condition, and they demurred to the indictment. From judgment sustaining the demurrer, the State appeals. Affirmed.

Affirmed.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

There is grave doubt as to whether or not the indictment charges a crime under section 3832, Code of 1930.

The indictment in this case states that a certain statement showing the condition of the bank was published on January 13, 1933. The indictment further alleges that the statement was signed, attested and sworn to on January 11, 1933, but it fails to allege the date on which the bank was in the condition advertised. For all that appears in the indictment it may have been the day that it was sworn to or twenty years before.

McCraine v. State, 158 Miss. 156, 130 So. 295.

An indictment charging a crime under the section above referred to cannot literally follow the language of the statute, but must go further than such language. As to when the statutory definition of a crime must be expanded beyond the language of the statute, see Harkness v. State, 95 Miss. 506, 48 So. 294; State v. Southern Railroad Company, 112 Miss. 23, 72 So. 837.

Another question presented to the court by this appeal is whether or not the alleged false report must be set out in the indictment in haec verba, or in substance, or whether it is sufficient to pick out certain items in the report and charge that they are false and not specify wherein they are false.

May v. State, 115 Miss. 708, 76 So. 736.

Wilbourn, Miller & Wilbourn, of Meridian, for appellee.

The indictment does not set forth in apt language such character of false writing or paper as the statute has reference to or as comes within the foregoing analysis of the statute.

The attempt to describe the paper referred to is fatal, because it is expressed in the alternative, and does not come within the terms of the clause of the statute under which the indictment is sought to be drawn.

Allegations in indictment may not be made in the alternative.

State v. Samm, 122 So. 101.

The document, whatever it was, is neither set forth in the indictment, nor is the purport thereof set forth in the indictment.

Section 1210, Code of 1930.

The purport of the document is not set forth in the indictment.

Roberts v. State, 72 Miss. 110; State v. Southern Ry. Co., 112 Miss. 23, 72 So. 837.

The indictment does not set forth that the particular items listed were represented to be all and the only resources of the bank, nor that such representation constituted a representation as to the entire resources of the bank. Unless it set forth all resources and all liabilities it was not a writing as to the condition of the bank.

Overall v. State, 128 Miss. 59, 90 So. 484; Simmons v. State, 160 Miss. 582, 135 So. 196; Fitzgerald v. State, 157 Miss. 229; Roberts v. State, 72 Miss. 110, 16 So. 233; State v. Freemen, 103 Miss. 764, 60 So. 774.

The indictment in this case does not charge that the representation as to the resources of the bank was false.

State v. Freeman, 103 Miss. 764, 60 So. 774; State v. Bardwell, 72 Miss. 535, 18 So. 377; Fleming v. State, 139 S.W. 598.

The rule laid down in Bardwell v. State, 72 Miss. 535, and in State v. Southern, 72 So. 837, 112 Miss. 23, is applicable.

Not only does the indictment not state the charge in the language of the statute, but it is stated alternatively in violation of a well settled rule.

State v. Samm, 122 So. 101, 154 Miss. 14.

The Legislature only condemned and sought to punish in those cases where the intent to deceive was to deceive as to the condition of the bank. There is no allegation that there was any such intent in the minds of the defendants at any time, and the indictment is for that reason fatally defective.

Kramer v. State, 18 Tex.App. 13.

OPINION

Ethridge, P. J.

The grand jury of Lauderdale county returned a bill of indictment against E. Cahn, Sr., E. Cahn, Jr., and Mark Dabbs, Sr., in the following words: "That E. Cahn, Sr., E. Cahn, Jr., and Mark Dabbs, Sr., in said County on the -- day of --, A. D. 1933, being then and there officers and agents of the Cahn Bank & Trust Company, a Mississippi Banking Corporation, doing a general banking business in the state of Mississippi, and domiciled in the City of Meridian, Mississippi, did unlawfully, wilfully, knowingly and feloniously subscribe to, make, and exhibit a false statement or report in writing, as to the condition of Cahn Bank & Trust Company, banking corporation aforesaid, and did then and there cause the same to be exhibited and published in the Meridian Star, a daily newspaper published in Meridian, Mississippi, in its issue of Friday, January 13, 1933, at page 3 thereof, and which said statement was signed, attested and sworn to by Mark E. Dabbs, cashier of said Bank, and E. Cahn and E. Cahn, Jr., directors of said bank before W. V. Evans, Notary Public on the 11th day of January, A. D., 1933, and which said statement, exhibit or report in writing, represented as resources of said bank the following, to-wit: Loans and discounts, three hundred seventeen thousand seven hundred seventeen dollars and twenty-nine cents; Stocks, bonds, securities, etc., one hundred fifty thousand eight hundred thirty-eight dollars and forty-five cents; Banking house and lot, forty thousand dollars; Other real estate owned, forty-one thousand seventy-one dollars and eighty-six cents; Furniture and fixtures, ten thousand dollars; all of which said representations as to the condition of the said Cahn Bank and Trust Company, as above stated, were then and there known to the said E. Cahn, Sr., Mark Dabbs, and E. Cahn, Jr., to be false, and unlawfully, wilfully, knowingly, feloniously subscribed to, made and exhibited with the unlawful, wilful and felonious intent then and there to deceive M. R. Adams and other persons unknown to the Grand Jury."

This indictment was, by R. Cahn, Sr., and E. Cahn, Jr., demurred to on many grounds, a nol pros. having been entered as to Mark Dabbs who had died prior to the filing of the demurrer. The court below sustained the demurrer, and, from the judgment so sustaining it, the state appeals.

The indictment was framed for the purpose of charging some offense under section 3832, Code of 1930 (chapter 207, Laws of 1916), reading as follows: "Any officer, director cashier, agent, clerk or stockholder of any bank (other than national bank) doing business in the state of Mississippi, who shall wilfully and knowingly subscribe to or make any false report or any false statement or entry in the books of such bank, or who knowingly subscribes or exhibits any false writing or paper with the intent to deceive any person as to the condition of such bank, shall be punished by a fine of not exceeding one thousand dollars or by imprisonment in the penitentiary not more than three years. Any banker officer, employee, director or agent of any state bank who shall wilfully or knowingly neglect to perform any duty required by law,...