State v. Cassill

• Decision Date: 19 May 1924
• Docket Number: 5385.
• Citation: 227 P. 49,70 Mont. 433
• Parties: STATE v. CASSILL ET AL.
• Court: Montana Supreme Court

227 P. 49

70 Mont. 433

STATE v. CASSILL ET AL.

No. 5385.

Supreme Court of Montana

May 19, 1924

Appeal from District Court, Powell County; George B. Winston, Judge.

C. H Cassill and another were convicted of making false statements to the superintendent of banks, and appeal. Affirmed.

C. A Spaulding, of Helena, for appellants.

W. D Rankin, Atty. Gen., and E. J. Cummins, Co. Atty., and S. P. Wilson, both of Deer Lodge, for the State.

CALLAWAY C.J.

The defendants C. H. Cassill and Scott K. Cassill were charged with having made false statements to the superintendent of banks concerning the actual financial condition and affairs of the First State Bank of Ovando, of which they were, respectively, president and cashier, in a report submitted to that officer. The report was made upon a prescribed form, pursuant to a call from the superintendent of banks, and purported to show in detail the resources and liabilities of the bank at the close of business on April 28, 1921. It was made up and verified at Ovando, in Powell county, on May 3, 1921, and transmitted by mail to the superintendent of banks at Helena, who received it on May 7, 1921. The information charges that the defendants made false statements in the report as follows: They represented therein (1) that among the assets of the bank there was due from reserve banks to the Ovando bank the sum of $10,364.12, while in fact, at the time referred to in the report, there was no greater sum due the Ovando bank from reserve banks than $364.12; (2) that the bank had a cash reserve of $10,364.12, but in fact it had a cash reserve of only $364.12; (3) that the Ovando bank had among its assets property or representatives of value, consisting of "redemption, taxes, interest, and expenses" of the value of $5,874, while in fact at the time referred to in the report the bank did not have any such asset of any value or amount whatever; (4) that among its assets the bank had an item consisting of real property which constituted an asset in the sum of $9,250, of the estimated actual value of $15,400, and that the same had been purchased by the bank on the 20th day of July, 1918, while in fact the bank did not have any such asset or similar asset; that prior to the making of the report defendants had caused a deed of said real estate to be executed, purporting to convey the same to the bank, but the title was subject to a prior mortgage or lien in excess of $9,000 and the land had no value in excess of the prior mortgage, and the same did not constitute an asset of the bank, in any amount whatever. The information charges that these statements contained in the report were each and all false, and were made with the felonious intent to deceive the superintendent of banks.

To the information the defendants pleaded not guilty, and in due time a trial resulted in their conviction. This was in October, 1921. Notice of appeal from the judgment was filed in November, 1921. By orders of the district court and of justices of this court the time for preparing and serving a bill of exceptions in behalf of the defendants was extended to the first day of August, 1923. The bill actually was settled on the 27th of July, 1923. The transcript was filed in this court on the 24th day of August, 1923. The record does not show the cause for this long delay in perfecting the appeal, but from affidavits which are on file here, wherein the defendants repeatedly made application to justices of this court for additional time in which to prepare their bill of exceptions, it is made to appear that they were unable to procure the transcript of the evidence from the official stenographer who took the testimony at the trial. It was represented that by reason of the pressure of other duties the stenographer was unable to transcribe the evidence. If seasonable application had been made to this court, a writ of mandamus would have issued directing the official stenographer to get out that transcript forthwith. The defendants had been convicted of a felony, had appealed to this court, and were entitled to a speedy hearing. The transcript, with the exhibits and certificates, consists of 728 pages of testimony and 37 pages of judgment roll. This could have been gotten out within a few weeks at most. Delays of this sort are unpardonable, and in future will not be tolerated. We trust this warning will be heeded.

In order to facilitate a hearing, and by reason of the poverty of the defendants, we permitted a typewritten transcript to be filed. By consent of counsel we extended the time for filing briefs. Defendants' brief was filed on January 26, 1924; the state's on April 21. Counsel for defendants makes 236 assignments of error, but these have been argued under several general heads.

1. Defendants contend that the district court of Powell county did not have jurisdiction to try them. The trial, they say, should have been had in Lewis and Clark county, where the offense charged was consummated. Their counsel says:

"It would seem, on principle, that if the delivery of this report to the banking department at Helena was an essential ingredient of the offense, then until such delivery there was no consummated making to the banking department of a false statement or report."

And he urges that, if the report had been lost in the mails, no one rightly could contend the offense had been consummated. These arguments may be conceded, but they are of no avail to defendants. Section 11707, R. C. 1921, says:

"When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county."

The acts constituting or requisite to the consummation of the offense charged here occurred in two counties, and trial might have been had in either. This case presents a clear illustration of the application of section 11707. Citation of authority would seem to be unnecessary, but see State v. Mason, 61 Kan. 102, 58 P. 978. Counsel relies upon State v. Hudson, 13 Mont. 112, 32 P. 413, 19 L. R. A. 775. The facts in that case were that the defendant forged an instrument in Gallatin county, and mailed it to Silver Bow county where it was delivered and acted upon. He was charged with uttering, publishing, and passing a false and forged instrument in Gallatin county. The uttering was the offense. The court held that the instrument was not uttered until it reached the destination intended, and said:

"The acts or effects requisite to the consummation of the offense were not committed in Gallatin county." In the instant case the making was the offense. A number of acts entered into the making, one of which was transmitting the report to the superintendent of banks. The inapplicability of the Hudson Case is clear, without further comment.

2. By the call the defendants were required to inform the superintendent of banks fully of the actual financial condition and affairs of the bank, as of date April 28, 1921. The report was fair on its face. It told him that on that date the Ovando bank had on deposit with approved reserve agents money available to its immediate demand in the sum of $10,364.12, and also that it had that amount of cash reserve. The representation was that $10,276.05 was on deposit in the Northwestern National Bank at Minneapolis. Entries on the Ovando bank's books indicated the same thing.

In view of the allegations of the information, to prove its case it was incumbent upon the state to show the falsity of the report in the particulars specified; to do that it was necessary to show the facts independently of the books, for the books and the report were found to correspond; falsity of the report being shown, it was important to inquire whether the defendants made the statements in any manner consistent with an honest purpose, or feloniously. So in order to prove their case against the defendants, counsel for the state essayed to show the falsity of the report, and that it was made with a felonious intent. For the purpose of showing such intent, they were permitted to prove acts of the defendants tending to show that a similar course of conduct had been carried on during the entire year preceding the making of the report upon which the information is based. It is upon this phase of the case that counsel for defendants has based his chief attack upon the validity of the judgment.

The rule, not questioned, is that evidence of other acts of a like nature is admissible to prove a uniform plan or course of action on part of the accused for the purpose of disclosing his motive, guilty knowledge or criminal intent, or to negative the idea that the particular offense complained of was the result of mere inadvertence, accident, or mistake; and, if such evidence also tends to establish the commission of another offense, it is not for that reason inadmissible. State v. Wyman, 56 Mont. 600, 186 P. 1; State v. Pippi, 59 Mont. 116, 195 P. 556. But counsel contends that palpable errors were committed by the court in admitting proof of what he terms are other offenses "wholly unrelated to the matter charged in the information."

And now to the facts. For a long time the Ovando bank had been sorely in need of funds. During the latter part of April, 1921, its reserve was less than 3 per cent., and by law it should not have been allowed to fall below 10 per cent. Session Laws 1921, c. 94. So the defendants conceived a plan to obtain the much needed credit, and this was the way of it.

On April 28, 1921, they drew up two promissory notes for $5,000 each in favor of the Ovando bank, dated on that day, which they signed themselves. By representing to four of their fellow directors that...