State v. Cramer

• Decision Date: 22 November 1911
• Citation: 20 Idaho 639,119 P. 30
• Parties: STATE, Respondent, v. LEO CRAMER, Appellant
• Court: Idaho Supreme Court

119 P. 30

20 Idaho 639

STATE, Respondent, v. LEO CRAMER, Appellant

Supreme Court of Idaho

November 22, 1911

BANK-RECEIVING DEPOSITS WHEN INSOLVENT-LIABILITY OF OFFICERS-INSTRUCTIONS-INSOLVENCY DEFINED-INSTRUCTIONS-PRINCIPAL AND ACCESSORY.

(Syllabus by the court.)

1. Where the vice-president and business manager of a bank, with full knowledge that his banking institution is insolvent and will not be able to meet its obligations and repay its depositors in the ordinary and due course of business permits or consents to such banking institution continuing to receive deposits through its regular employees, he is criminally liable under the provisions of sec. 2985, Rev Codes 2. Sec 2985, Rev. Codes, was enacted for the special purpose of protecting those who place their money on deposit in banking institutions, and the legislature clearly intended in enacting said section to make all the officers who have knowledge of the condition of the bank responsible for the acts of employees thereof in receiving deposits.

3. Certain instructions offered on behalf of the defendant and refused by the court considered, and instruction given by the court approved, to the effect that if at the time the deposit in question was received said bank was kept open with the knowledge and consent and under the general authority of the defendant as an officer of said bank for the doing of business and the reception of deposits, and said defendant knew that deposits were being received, though not personally receiving the same, then said deposit in question was received by defendant as an officer of said bank, within the meaning of the statute.

4. The word "insolvent," as used in sec. 2985, Rev. Codes, and as applied to banking institutions, means that a bank is insolvent when its assets and property are of such a character and value or in such a condition that it is unable to meet the demands made upon it in the usual and ordinary course of banking business.

5. Instructions refused and instructions given by the court with reference to the meaning of the term "insolvent" as used in sec. 2985 considered, and instructions given by the court approved.

6. Sec. 7697 specifically abrogates all distinctions heretofore existing between accessories and principals. Under the statute of this state an accessory is now prosecuted as a principal. (Citing State v. Bland, 9 Idaho 806, 76 P. 780.)

7. Sec. 2985 makes an officer of a bank liable as a principal and not as an accessory. Under the evidence in this case, the defendant was properly convicted as a principal, and even if any distinction between principals and accessories were recognized in this state, it would not apply in the case at bar under the provisions of said sec. 2985.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Prosecution for the offense of receiving deposit in an insolvent bank by officer of such bank, under sec. 2985, Rev. Codes. Conviction had and defendant appeals. Affirmed.

Affirmed.

N. M. Ruick, McFadden & Brodhead, Angel & Lamme, and Frank T. Disney, for Appellant.

In the case of an incorporated bank or banking institution, one officer cannot be held to be criminally liable for the act of another officer of the same institution in receiving a deposit, though the bank be insolvent and such condition be known to the accused. (Ex parte Rickey, 31 Nev. 82, 135 Am. St. 651, 100 P. 134.)

The language of the Idaho statute is plain and unmistakable. The officer who shall receive shall be deemed guilty. To construe this as including an officer, or officers, other than the one who receives a deposit is to do violence to the English language. (United States v. Wiltberger, 5 Wheat. (U.S.) 76, 5 L.Ed. 37; Bishop, Writ. Laws, 226; Lewis' Sutherland Stat. Const. 356; Bishop, Stat. Crimes, sec. 195 et seq.; Sedgwick, Construction of Statutes and Const. Law, 279.)

"Penal statutes must be strictly construed and the courts can neither add to nor take from them." (Stewart v. State, 95 Miss. 627, 49 So. 615; State v. Dunning, 130 Iowa 678, 107 N.W. 927; State v. Youngbluth, 60 Wash. 383, 111 P. 240.)

The lower court adopts in its instructions the narrower definition of the term as employed in bankruptcy and insolvency proceedings, while the defendant contends for the broader definition of the term,--for its usual and ordinary meaning as generally used and understood. (Ellis v. State, 138 Wis. 513, 131 Am. St. 1022, 119 N.W. 1110, 20 L. R. A., N. S., 444; Hamilton v. Menominee Falls Quarry Co., 106 Wis. 352, 81 N.W. 876.)

We recognize that the statute has abolished the distinction between principal and accessory before the fact and that the latter may be indicted, tried and punished as principal. The law has not, however, changed to the extent that it is possible to hold one man criminally responsible for an act performed by another, except the former be shown to have aided and abetted the latter in the commission of the offense, and he must both "aid and abet." (State v. Corcoran, 7 Idaho 221, 61 P. 1034; People v. Dole, 122 Cal. 486, 68 Am. St. 50, 55 P. 581; 12 Cyc. 616; Hughes, Instructions, sec. 293; Wood v. State, 28 Tex. App. 14, 11 S.W. 678.)

"Instructions asked by the accused, presenting his defense, and which the evidence in any degree tends to support, should be given." (State v. Manus, 48 W.Va. 480, 37 S.E. 613, 14 Am. Cr. Rep. 245; State v. Kerns, 47 W.Va. 266, 34 S.E. 734, 15 Am. Cr. Rep. 468; Hunter v. State, 101 Ind. 241, 5 Am. Cr. Rep. 336; Bryant v. Modern Woodmen of America, 86 Neb. 372, 125 N.W. 621, 27 L. R. A., N. S., 326.)

"Aiding and abetting are affirmative in their character; consenting may be a mere negative acquiescence, not in any way made known to the principal malefactor. Such consenting, though involving moral turpitude, does not come up to the meaning of the words 'aid and abet.'" (White v. People, 81 Ill. 333; State v. Douglass, 44 Kan. 618, 26 P. 476; Drury v. Terr., 9 Okla. 398, 60 P. 101; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370; Butler v. People, 125 Ill. 641, 8 Am. St. 423, 18 N.E. 338, 1 L. R. A. 211; State v. Teahan, 50 Conn. 92; State v. Empey, 79 Iowa 460, 44 N.W. 707; State v. Corcoran (Ida.), supra.)

J. H. Peterson, and O. M. Van Duyn, Assistants to Attorney General, for Respondent.

There can be no question, under any of the decisions, but that in case this were a private bank, and not a corporation, the statute would include in its application not only the person physically receiving the money, but also the officers of said bank who were cognizant of the condition of the bank, and were aware of the deposit. (Baker v. State, 54 Wis. 368, 12 N.W. 12; State v. Cadwell, 79 Iowa 432, 44 N.W. 700; State v. Buck, 120 Mo. 479, 25 S.W. 573; State v. Eifert, 102 Iowa 188, 63 Am. St. 433, 65 N.W. 309, 71 N.W. 248, 38 L. R. A. 485; Meadowcroft v. People, 163 Ill. 56, 54 Am. St. 447, 45 N.E. 303, 35 L. R. A. 176; State v. Boomer, 103 Iowa. 106, 72 N.W. 424; State v. Quackenbush, 98 Minn. 515, 108 N.W. 953; State v. Shove, 96 Wis. 1, 65 Am. St. 17, 70 N.W. 312, 37 L. R. A. 142; Carr v. State, 104 Ala. 4, 16 So. 150.)

The same proposition applies to an incorporated bank. (State v. Mitchell, 96 Miss. 259, 51 So. 4, 26 L. R. A., N. S., 1072, and cases cited; Ellis v. State, 138 Wis. 513, 131 Am. St. 1022, 119 N.W. 1110, 20 L. R. A., N. S., 444; Parrish v. Commonwealth, 136 Ky. 77, 123 S.W. 339; Ex parte Smith (Nev.), 111 P. 930.)

The cases are almost unanimous in supporting the instructions of the trial court with regard to when a bank is to be deemed insolvent. (5 Cyc. 559; Jones on Insolvency and Banking Corporations, sec. 12; 4 Words and Phrases, 3654; 3 Ency. of Law, 847; State v. Myers, 54 Kan. 206, 38 P. 296; State v. Cadwell, 79 Iowa 432, 44 N.W. 700; Walton v. First National Bank, 13 Colo. 265, 16 Am. St. 200, 22 P. 440, 5 L. R. A. 765; State v. Stevens, 16 S.D. 309, 92 N.W. 420; State v. Sattley, 131 Mo. 464, 33 S.W. 41; State v. Darrah, 152 Mo. 522, 54 S.W. 226; State v. Burlingame, 146 Mo. 207, 48 S.W. 72; State v. Beach, 147 Ind. 74, 43 N.E. 949, 46 N.E. 145, 36 L. R. A. 179; Meadowcroft v. People, 163 Ill. 56, 54 Am. St. 447, 45 N.E. 303, 35 L. R. A. 176; Commonwealth v. Rockafellow, 163 Pa. 139, 29 A. 757; People v. Bank, 159 Cal. 65, 112 P. 866.)

BRYAN, District J. Stewart, C. J., and Ailshie, J., concur.

OPINION

BRYAN, District J.

On the 10th day of January, 1911, an information was filed against the defendant and others in the district court in and for Blaine county, the charging part of the information being as follows:

"That on the 31st day of August, A. D. 1910, at the City of Hailey County of Blaine, State of Idaho, the said John J. Plumer, then being an officer, to wit, president of the Idaho State Bank, a corporation organized and then and there existing under the laws of the state of Idaho and as such corporation then and there engaged in a general banking business at the said City of Hailey, and the said Leo Cramer then being an officer, to wit, vice-president of said bank, and the said Arthur B. Cutts, then being an officer, to wit, cashier of said bank, and the said Hugh Cramer, then being an officer, to wit, director of said bank, did, as such officers of said bank, at the time and place aforesaid, and before the filing of this information, wilfully, unlawfully, feloniously and fraudulently, and with intent on the part of each of said officers to cheat and defraud one Helen Foster, receive a deposit in said bank in the sum of forty dollars, lawful money of the United States of America, of and from the said Helen Foster, which said money was then and there the property of said Helen Foster; and which said Idaho State Bank was...