State v. Givens

• Decision Date: 27 November 1915
• Citation: 152 P. 1054,28 Idaho 253
• Parties: STATE, Respondent, v. J. A. GIVENS, Appellant
• Court: Idaho Supreme Court

152 P. 1054

28 Idaho 253

STATE, Respondent, v. J. A. GIVENS, Appellant

Supreme Court of Idaho

November 27, 1915

ALLEGED FALSE REPORT TO STATE BANK COMMISSIONER-SEC. 82, CHAPTER 124 SESS. LAWS 1911, P. 411-SUFFICIENCY OF EVIDENCE TO WARRANT CONVICTION-ERRORS IN ADMITTING AND EXCLUDING TESTIMONY-PREJUDICIAL REMARKS OF PROSECUTING ATTORNEY.

1. In order to warrant the conviction of a defendant charged under sec. 82, chapter 124, 1911, Sess. Laws, p. 411, with making a false report, it must be proved beyond a reasonable doubt that a false report of the financial condition of the bank was made, and that the defendant knew the report to be false at the time it was made.

[As to state regulation of private banking, see note in Ann.Cas 1914A, 171.]

2. Held, that respondent in this case failed to establish by competent evidence that the report made by appellant to the state bank commissioner was false, in that it failed to show the true financial condition of the Bank of Nampa as disclosed by the books of the bank, and that the appellant knew the report to be false at the time it was made and attested.

3. Where the knowledge, intention or good faith of a party to an action becomes material, it may be shown directly as well as from circumstances, and the party himself, if a competent witness, may testify directly to his intention or understanding, unless prevented by some other principle of law applicable to the particular case. Held, that it was reversible error for the trial court to prevent the appellant from testifying fully to all conversations had between him and the state bank commissioner at the time he presented to said state official the report of the financial condition of the bank of Nampa.

4. Held, that the action of the trial court in permitting the prosecuting attorney to make certain remarks in his final argument to the jury, when considered in connection with other errors committed by the court in the trial of this cause, was highly prejudicial to the substantial rights of appellant, and constituted reversible error.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Prosecution for making false report of the financial condition of a state bank. Judgment of conviction. Reversed.

Judgment of conviction set aside and a new trial granted.

Hawley & Hawley, Jackson & Walters and R. L. Givens, for Appellant.

Where there is no material conflict and the proof offered is capable of two constructions, one of which is compatible with innocence, the defendant should be released. (State v Nesbit, 4 Idaho 548, 43 P. 66; State v. Howser, 12 N.D. 495, 98 N.W. 352; State v. Seymour, 10 Idaho 699, 79 P. 825.)

"Where a criminal intent is a necessary ingredient of the offense and it appears from the circumstances that such intent did not exist, no issue of fact proper to go to the jury is raised." (United States v. Corbett, 215 U.S 233, 30 S.Ct. 81, 54 L.Ed. 173.)

A man cannot be convicted of a felony and have visited upon him the disgrace and humiliation of incarceration in the state penitentiary for a mere difference of opinion in regard to bookkeeping. (Graves v. United States, 165 U.S. 323, 17 S.Ct. 393, 41 L.Ed. 732; Potter v. United States, 155 U.S. 438, 15 S.Ct. 144, 39 L.Ed. 214.)

"Money paid in pursuance of a prior agreement resting on abundant credit, though it overdraws a person's account in the bank, is recognized and as clearly justified as any other kind of a loan." (United States v. Steinman, 172 F. 913, 97 C. C. A. 271; 5 Johnson's Modern Business, p. 266; Barrett on Modern Banking Methods, pp. 146, 147; Daniel on Negotiable Instruments, sec. 1650.)

"It was not the purpose of the legislature to punish an officer who, through an honest mistake, makes an entry in one of the books, or reports of the bank which he believes to be true when it is in fact false." (State v. Jackson, 20 S.D. 305, 105 N.W. 742; State v. Mason, 61 Kan. 102, 58 P. 978, at 981; Bacon v. United States, 97 F. 35, 43, 38 C. C. A. 37.)

Items indorsed as in the case at bar become the property of the bank and are properly reported as assets due from banks. (First Nat. Bank v. Hughes, 5 Cal. Unrep. 454, 46 P. 272; Gregg v. BiMetallic Bank, 14 Colo. App. 251, 59 P. 852; Union Nat. Bank v. Citizens' Bank, 153 Ind. 44, 54 N.E. 97; Harris v. Randolph County Bank, 157 Ind. 120, 60 N.E. 1025, 1032; Gochran v. United States, 157 U.S. 286, 15 S.Ct. 628, 39 L.Ed. 704.)

The mere failure to make an entry constitutes no false entry, and though there appeared no cashier's checks upon the general ledger, and there were in truth what amounted to cashier's checks outstanding, this is not a false entry. (Goll v. United States, 151 F. 412, 80 C. C. A. 642; Hayes v. United States, 169 F. 101, 94 C. C. A. 449; United States v. Young, 128 F. 111.)

In cases of this kind an attesting director cannot be held criminally responsible for any defects in the report. (Gerner v. Mosher, 58 Neb. 135, 78 N.W. 384, 46 L. R. A. 244.)

The party charged must have in person made the false entry or have directed the party actually making the entry which is alleged to be false before becoming criminally liable. (United States v. McClarty, 191 F. 523; United States v. Norton, 188 F. 256.)

"Facts or circumstances should be developed tending to connect the defendant with the commission of the offense such as would be inconsistent with the actions and conduct of an innocent man." (State v. Vogel, 23 Idaho 786, 132 P. 107; United States v. Wilson, 176 F. 806.)

"If the return must be founded on the books of the bank and contain a true statement of its condition, the law is observed when the return is substantially true, although it may be not indicated by bank books." (5 Cyc. 486; Commonwealth v. Dunham, Thacher Crim. Cas. (Mass.) 513, 519; Bank of British North America v. Alaska Imp. Co., 97 Cal. 28, 31 P. 726.)

Defendant is entitled to a rigid and thorough examination of any witnesses, and in so doing may put leading questions. To refuse such requests is prejudicial error. (State v. Webb, 6 Idaho 428, 55 P. 892; Wharton on Crim. Evidence, sec. 458; White v. Dinkins, 19 Ga. 285; 3 Ency. of Evidence, 819, and note 76.)

"The rule is quite liberal in allowing a broad range of inquiry on cross-examination, and this rule is particularly applicable when it comes to the cross-examination of that class of witnesses commonly called experts." (Trull v. Modern Woodmen of America, 12 Idaho 318, 85 P. 1081, 10 Ann. Cas. 53; People v. Sutton, 73 Cal. 243, 15 P. 86; West Chicago St. Ry. Co. v. Fishman, 169 Ill. 196, 48 N.E. 447, at 449; Dilleber v. Home Life Ins. Co., 87 N.Y. 79; Louisville etc. Ry. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389, 4 N.E. 908; Kelly v. Telephone Co., 34 Minn. 321, 25 N.W. 706; 1 Thomp., Trials, sec. 631.)

"Permitting the prosecuting attorney on cross-examination of defendant to ask, under objection, a question not related to or pertinent to the issue, or involved directly or indirectly in the offense for which defendant was on trial, and which was calculated to unduly prejudice him in the minds of the jury, is sufficient error to warrant a reversal of a judgment of conviction." (Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45; People v. Derbert, 138 Cal. 467, 71 P. 564; State v. Irwin, 9 Idaho 35, at 40, 71 P. 608, 60 L. R. A. 716; Wharton's Crim. Evidence, secs. 475, 987.)

When a defendant takes the stand, he should be allowed the widest latitude in the matter of explaining the reason for his acts as well as detailing the acts themselves. (Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770; Grenell v. Michigan Cent. R. Co., 124 Mich. 141, 82 N.W. 843; Wigmore, Ev., sec. 655; Cole v. Lake Shore & M. S. Ry. Co., 105 Mich. 549, 63 N.W. 647; State v. Jones, 25 Idaho 587, 603, 138 P. 1116; State v. Johnson, 17 N.D. 554, 118 N.W. 230; State v. Johnston, 26 Idaho 609, 144 P. 784; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783; Commonwealth v. Anderson, 220 Mass. 142, 107 N.E. 523.)

In cases of this kind, the custom or usage, or the defendant's understanding of the custom or usage, is proper evidence to go to the jury, and it is error to exclude such evidence together with the facts and circumstances surrounding the same. (Conner v. Citizens' St. R. Co., 146 Ind. 430, 45 N.E. 662; Laurie Co. v. McCullough, 173 Ind. 477, 90 N.E. 1014, at 1017, Ann. Cas. 1913A, 49, 92 N.E. 337; Harrison v. Birrell, 58 Ore. 410, 115 P. 141.)

"Questions on cross-examination eliciting testimony which merely tends to prejudice and excite the passions of the jury against the opposite party transcend the limits of a proper cross-examination." (3 Ency. of Evidence, 814, note 57; Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679, 44 L. R. A. 216; Hancock v. Blackwell, 139 Mo. 440, 41 S.W. 205; Howland v. Oakland Consolidated St. Ry. Co., 115 Cal. 487, 47 P. 255; Leo v. State, 63 Neb. 723, 89 N.W. 303; State v. Lurch, 12 Ore. 99, 6 P. 408; People v. O'Brien, 66 Cal. 602, 6 P. 695.)

Prejudicial remarks in closing argument by prosecuting attorney warrant a reversal. (State v. Moon (Iowa), 148 N.W. 1001; State v. Coyle, 41 Utah 320, 126 P. 305, 370; State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716; People v. Fielding, 158 N.Y. 542, 70 Am. St. 495, 53 N.E. 497, 46 L. R. A. 641, note; McDonald v. People, 126 Ill. 150, 9 Am. St. 547, 559, 18 N.E. 817; Leo v. State, 63 Neb. 723, 89 N.W. 303, and cases cited.)

"Rebukes do not seem to have any effect upon prosecuting officers, and probably as little upon juries. The only way to secure fair trials is to set verdicts so procured aside." (People v. Valliere, 127 Cal. 65, 59 P. 295; State v. Rodriguez, 31 Nev. 342, 102 P. 863; State v. Gruber, 19 Idaho 692, 115 P. 1.)

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