State v. Grandbouche

• Citation: 32 Wyo. 88,230 P. 338
• Decision Date: 24 November 1924
• Docket Number: 1104
• Parties: STATE v. GRANDBOUCHE [*]
• Court: United States State Supreme Court of Wyoming

230 P. 338

32 Wyo. 88

STATE v. GRANDBOUCHE ^[*]

No. 1104

Supreme Court of Wyoming

November 24, 1924

Rehearing Denied: see 233 P. 532.

Rehearing Denied 32 Wyo. 88 at 108.

APPEAL from District Court, Weston County, JAMES H. BURGESS, Judge.

A. C Grandbouche and Everett Nelson were convicted of willful misapplication of bank funds and they appeal. The material facts are stated in the opinion.

Affirmed.

James P. Kem and Henry Frawley for appellants.

The information does not allege that the misappropriation was accomplished by defendants by virtue of their official capacity. It should have been quashed. Moore v. U. S. 16 S. C. R. 294; State v. Winstandley 57 N.E. 109; State v. Cadwallader 57 N.E. 512; Comp. Stats. 7136; An averment that the acts were done officially is essential; Overland Co. v. People 105 Am. St. Rep. 74; Flickenger v. U. S. 105 F. 1; Com. v. Kitner 37 Am; Rep. 692; U. S. v. Northway 7 S. P. Ct. 580; U. S. v. Britton 2 S. P. Ct. 512. The words "willfully misapplied" have no settled meaning. U. S. v. Norton 188 F. 256; Prettyman v. U. S. 180 F. 380; In felony cases the offense must be charged with clearness and certainty. U. S. v. Carll 105, U.S. 611; U. S. v. Morse 161 F. 429. Intent is an indispensable ingredient of the offense charged. U. S. v. Smith 152 F. 542. There was no misapplication of funds shown by the evidence. Prewitt v. Trimble 6 Am. St. Rep. 586; Morse Bank & Banking 135. The loan was made in good faith. Bank v. Pierie 82 F. 799; the funds were not sufficiently described; U. S. v. Hess, 8 S.Ct. 571; Keck v. U. S. 19 S.Ct. 254; Batchelor v. U. S. supra. There is no criminal liability for misapplication of funds arising from bad judgment or want of skill; Spering Appeal 10 Am. Rep. 684. Bank directors are liable only for fraud or gross negligence; Morawetz Sec. 552; such directors are mandatories acting gratutiously and only bound to apply ordinary skill and diligence; Taylor v. Co. 5 Ohio 162; Franklin Co. v. Jenkins, 3 Wend. 130; Hodges v. Co. 53 Am. Dec. 624; Williams v. McDonald 37 N. J. E. 411. Guilt depends upon circumstances as they appear to accused; Dotson v. State 34 Am. Rep. The question of intent is for the jury. An overdraft is a loan. U. S. v. Smith 155, Fed. 542. It was error to deny motion for new trial pro forma, Manhattan Co. v. Keeler 4 P. 143; K. C. Co. v. Ryan 30 P. 109; State v. Bridges, 29 Kan. 138; Larabee v. Hall 31 P. 1062; State v. Summers 24 P. 1099; Starrett v. Shaffer 61 P. 817; Ranney v. Co. 32 A. 810; the Weston County Court was without jurisdiction; no funds were misapplied in Weston County. The draft was drawn on a bank in Laramie County where the funds were. The checks were paid in Cheyenne, Laramie County; the draft was not paid in money belonging to the Upton Bank. Crime cannot be ambulatory. Crime must be punished where it is committed; Art. 1, Sec. 10, Const. People v. Mather, 4 Wend. 230; Com. v. Green, 17 Mass. 515; People v. Cummings 123 Cal. 269. A crime consisting of several acts, part in one county and part in another cannot be prosecuted in either, 2 Whar. Cr. 1208; State v. Fraher, 148 Mo. 143; U. S. v. Martindale, 146 F. 288. The Appellate Court should not hesitate to reverse the judgment, even though exceptions were not taken at the trial; Seng v. State (Wyo.) 122 P. 631; Patten v. U. S. 110 U.S. 374; Wilborg v. U. S. 163 U.S. 632; Anderson v. State, 126 P. 840; People v. Burk, 115 P. 1101.

W. L. Walls, Attorney General, for respondent.

The offense is statutory and a charge in the language of the statute is sufficient. It was unnecessary to charge that defendants drew and paid the checks in their official capacity as directors. State v. Beach, 147 Ind. 76; Ritter v. State, 111 Ind. 324; Evans v. U. S. 153, U.S. 584. A criminal act with intent to injure the bank was completed when a check known to be worthless is paid or passed to the credit of the depositor. Riegor v. U. S. 107 F. 916; U. S. v. Northway, 102 U.S. 327. The ingredients of the offense were fully set forth in the information. Claassen v. U. S. 142 U.S. 140. The drawing and payment of two checks did not constitute two separate and distinct offenses; Richey v. State, 201, Pac. 154; Prettyman v. U. S. 180 F. 35. The evidence of guilt was full and complete, and clearly established the offense charged; Lear v. U. S. 147 F. 359; error cannot be assigned upon instructions given or refused, in the absence of exceptions taken; Richey v. State supra; Dickerson v. State, 18 Wyo. 440; Loy v. State 26, Wyo. 381. A general verdict of guilty, is a verdict covering all that the information properly charges, Cook v. Ter. 3 Wyo. 116; People v. Marsh 6, Cal. 543; Richey v. State, supra. No exceptions were reserved for refusing to give requested instructions; Gardner v. State, 27 Wyo. 316; Dickerson v. State 18 Wyo. 472. Remarks of the Court were not prejudicial to defendants. No instructions were requested on burden of proof; Gardner v. State supra. Palmer v. State 9 Wyo. 40. People v. Raher, 92 Mich. 165. Failure to define reasonable doubt was not error; Winn. v. State 82, Wis. 572; People v. Marsh, 72 Cal. 46; State v. Brooks, 92 Mo. 542; Nead v. State 53, N. J. L. 601; Loy v. State 26 Wyo. 321; The Weston County Court had jurisdiction. The offense was completed in Weston County, by the payment of the checks by draft. Burton v. U. S. 196 U.S. 283; State v. Smith, 144 N.W. 32. The case was brought to the Supreme Court on appeal, and a motion for new trial was unnecessary.

TIDBALL, District Judge. POTTER, Ch. J., and RINER, District Judge, concur.

OPINION

TIDBALL, District Judge.

The appellants Grandbouche and Nelson, hereinafter referred to as defendants, were convicted in the District Court of Weston County of violating Section 7136, Wyoming Compiled Statutes of 1920, and were sentenced to a term in the penitentiary, and have appealed from that judgment to this court.

The information under which defendants were convicted reads as follows:

INFORMATION.

Comes now David A. Fakler, County and Prosecuting Attorney of Weston County, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the Court and gives the Court to understand that A. C. Grandbouche and Everett =Nelson, both of the County aforesaid, on the 18th day of October in the year of our Lord one thousand nine hundred and twenty-one, at the said Weston County in the State of Wyoming, did then and there at the time and place aforesaid, wilfully and unlawfully misapply of the funds and money the property of the Citizens State Bank of Upton, the sum of Five thousand Dollars in lawful money of the United States, and did, then and there, convert the said sum of money to their own use with intent then and there to wilfully and unlawfully injure and defraud the said Citizens State Bank of Upton, aforesaid, as follows, to-wit:

That on the 18th day of October, in the year of our Lord one thousand nine hundred and twenty-one, and prior thereto, the Citizens State Bank of Upton, was a banking corporation, duly organized and existing under and by virtue of the laws of the State of Wyoming, and as such then and there engaged in transacting a general banking business at Upton, Weston County, Wyoming, and that the said Everett Nelson and the said A. C. Grandbouche were each then and there, and had been for sometime prior thereto, directors of the bank aforesaid that on the 15th day of October, in the year of our Lord one thousand nine hundred and twenty-one, the said A. C. Grandbouche then and there, well knowing that he had no money or funds on deposit, or subject to check, in the bank aforesaid, to pay any check that he might draw in any sum on said bank, knowingly, wilfully and unlawfully drew two certain checks on the Bank aforesaid dated on that day for the sum of Twenty-five Hundred Dollars, each, payable to one H. B. Shields, and then and there uttered the said checks by delivering the same to the said H. B. Shields in payment to the said H. B. Shields of some obligation to your informant unknown; that thereafter, and on the 18th day of October, in the year of our Lord one thousand nine hundred and twenty-one, after the said checks had been so drawn and uttered as aforesaid by the said A. C. Grandbouche aforesaid, the said checks were presented for payment by the Bank of Upton to the said Citizens State Bank of Upton, and when so presented, there was no money or funds on deposit in said Citizens State Bank of Upton to the credit of the said A. C. Grandbouche aforesaid subject to check or at all with which to meet or pay the said checks, all of which was then and there well known to the said Everett Nelson and the said A. C. Grandbouche, but that, notwithstanding such knowledge on the part of the said Everett Nelson and A. C. Grandbouche aforesaid, the said Everett Nelson, then and there acting jointly and in a conspiracy with the said A. C. Grandbouche to injure and defraud the said Citizens State Bank of Upton, did then and there wilfully and unlawfully cause the said two false, fraudulent and worthless checks in the said sum of Twenty-five Hundred Dollars each, or Five Thousand Dollars in all, so wrongfully and fraudulently drawn and uttered by the said A. C. Grandbouche as aforesaid, upon the said Citizens State Bank of Upton, as aforesaid, to be fully paid out of the funds and money of the Citizens State Bank of Upton, and that the said Everett Nelson and A. C. Grandbouche aforesaid, then and there at the time and place aforesaid, and while acting in concert and conspiring together to injure and defraud the said Citizens State Bank of Upton, as aforesaid, did wilfully, wrongfully and feloniously, by the manner and means aforesaid, at the time and place aforesaid, misapply of the said...