State v. Haesemeyer

• Decision Date: 11 December 1956
• Docket Number: No. 49024,49024
• Citation: 79 N.W.2d 755,248 Iowa 154
• Parties: STATE of Iowa, Appellant, v. W. L. HAESEMEYER, Appellee.
• Court: Iowa Supreme Court

Page 755

79 N.W.2d 755

248 Iowa 154

STATE of Iowa, Appellant, v. W. L. HAESEMEYER, Appellee.

No. 49024.

Supreme Court of Iowa.

Dec. 11, 1956.

Dayton Countrymen, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Charles King, Marshalltown, County Atty., and J. D. Robertson, Sp. Prosecutor, Marshalltown, for appellant.

Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, and John L. Mowry, Marshalltown, for appellee.

GARFIELD, Justice.

Defendant, president and active executive officer of a state bank, was acquitted of embezzlement in the claimed violation of section 528.6, Codes 1950, 1954, I.C.A. The state has appealed and contends some of the instructions to the jury were erroneous.

I. The judgment is a finality with respect to the discharge of defendant. However, we will entertain an appeal by the state where it presents questions of law the determination of which will be beneficial or a guide to trial courts in the future. See Code section 793.20; State v. Hill, 244 Iowa 405, 407, 57 N.W.2d 58, 59, and citations. We think this appeal presents such questions.

II. The indictment as amended reads: 'The grand jury of the county of Marshall * * * accuse W. L. Haesemeyer of the crime of excessive loans to an officer committed as follows: The said W. L. Haesemeyer on the 10th day of October, 1951, in the county aforesaid, and while acting as president of the Central State Bank, State Center, Iowa, did use or borrow for himself, directly or indirectly, money belonging to said * * * bank * * * in the amount of $45,000, * * * being in excess of ten per cent of the capital and surplus of said bank without such loan first being approved, in writing, by a majority of the board of directors of said bank. In violation of Section 528.6, Code of Iowa (1954).'

Code section 528.6 provides: 'Loans to officers or employees--use of funds. No officer * * * of the bank shall in any manner directly or indirectly use its funds or deposits or any part thereof, except for the regular business transactions of the bank, and no loans shall be made by it to any of them except upon express order of the board of directors, made in the absence of the applicant, duly entered in the records of the board proceedings * * *.

'No active executive officer of any state bank, * * * shall use or borrow for himself, directly or indirectly, any money * * * belonging to any state bank * * * of which he is an officer, in excess of ten percent of the capital and surplus of such bank * * *.

'Where loans are made to such active executive officers they must first be approved by a majority of the board of directors, said approval to be in writing and the active executive officer to whom said loans are made, not voting. * * *

'Provided, if any such active executive officer shall own a majority of the stock of any other corporation a loan to that corporation shall be considered for the purpose of this section as a loan to him.'

Section 528.7 says 'Any such officer * * * violating any of the provisions of section[s] * * * 528.6 shall be guilty of embezzlement' and punished as therein stated. Evidently because of this provision the court, in its instructions to the jury, construed the indictment as charging embezzlement rather than 'the crime of excessive loans to an officer' as the indictment states. No complaint is made of this and we give it no further attention.

Instruction 6 states in effect that the only part of section 528.6 applicable to the case is the provision in the second paragraph thereof: 'No active executive officer of any state bank * * * shall use or borrow for himself, directly or indirectly, any money * * * belonging to any state bank * * * of which he is an officer, in excess of ten percent of the capital and surplus of such bank * * *.'

The state objected to instruction 6 on the ground the jury should also have been instructed as to the first prohibition section 528.6 contains and the requirement thereof that loans made to active executive officers must first be approved by a majority of the board of directors. The indictment alleges the loan defendant made to himself was without such board approval.

We are clear the court's failure to instruct with regard to this requirement of section 528.6 was proper and did not prejudice the state in any way. Defendant was accused of borrowing for himself $45,000 of the bank's money, being in excess of ten per cent of the capital and surplus. The loan was represented by a promissory note for that amount, signed by Martin Schaper, payable to the bank. It is the same note referred to in State v. Haesemeyer, Iowa, 78 N.W.2d 36. The bank's capital and surplus totaled $175,000. Obviously the loan far exceeded ten per cent thereof.

The part of section 528.6 submitted to the jury is an absolute prohibition against an active executive officer's borrowing from the bank an amount in excess of ten per cent of the capital and surplus. The directors have no authority to approve such an excess loan. The requirement of 528.6 that loans to such officers must first be approved by the board of directors plainly applies only to loans not absolutely prohibited--i. e., loans not in excess of ten per cent of the capital and surplus. The approval requirement of 528.6 has no application here and the court properly ignored it in its instructions. See Browning v. State, 101 Fla. 1051, 133 So. 847, 849; People v. Lewis, 262 Mich. 308, 247 N.W. 154.

The first prohibition of section 528.6 which the state contends should have been submitted to the jury is, 'No officer * * * of the bank shall in any manner directly or indirectly use its funds or deposits or any part thereof, except for the regular business transactions of the bank * * *.' There is substantial evidence of a violation of this provision. However, we think it was proper not to submit such question to the jury because defendant was not charged with a violation of this prohibition but only with having violated the part of section 528.6 instruction 6 submitted to the jury.

There is nothing in the indictment as returned or as amended which charges defendant used the bank's funds or deposits for a purpose other than the regular business transactions of the bank. While the indictment charges a violation of 528.6, the means and manner of such violation are expressly stated--i. e., that defendant used or borrowed for himself, directly or indirectly, $45,000 of the bank's money, being in excess of ten per cent of the capital and surplus. As previously explained, the indictment designates the crime as 'excessive loans to an officer.'

It may be the state was not required to allege the means by which the offense was committed. Code section 773.10. But having done so, it had the burden to prove defendant's guilt substantially as alleged. State v. Schuling, 216 Iowa 1425, 250 N.W. 588; State v. Essex, 217 Iowa 157, 250 N.W. 895; Wright v. People, 104 Colo. 335, 91 P.2d 499, 123 A.L.R. 474, 477.

42 C.J.S., Indictments and Informations, § 262, states: 'Where an offense may be committed in various ways, the evidence must establish it to have been committed in the mode charged in the indictment.'

The state filed a bill of particulars and supplemental bill of particulars before it amended the indictment. See Code section 773.5. Later the state filed another supplemental bill of particulars and amendment thereto containing in all 26 numbered paragraphs. Paragraph 23 does state the funds of the bank were not used as a regular business transaction of the bank because defendant had a beneficial interest in the proceeds of the $45,000 note, although it was signed by Martin Schaper, and for other reasons.

The state seems to feel the bill of particulars should be considered part of the indictment or an amendment thereto. But we think it is not to be so treated. The bill did not change or enlarge the offense charged in the indictment. Wright v. People, supra, 104 Colo. 335, 91 P.2d 499, 123 A.L.R. 474, 477, and citations; People v. Johnson, 363 Ill. 45, 1 N.E.2d 386, 388; Commonwealth v. Sacco, 255 Mass. 369, 151 N.E. 839; State v. Greer, 238 N.C. 325, 77 S.E.2d 917, 922; State v. Davis, 39 R.I. 276, 97 A. 818, Ann.Cas.1918C, 563, 568-569; 27 Am.Jur., Indictments and Informations, sections 112, 117; 42 C.J.S., Indictments and Informations, § 156d, pages 1101-1102.

In support of its contention the jury should have been instructed on the first prohibition section 528.6 contains, the state cites State v. Stack, 221 Iowa 727, 266 N.W. 523; State v. Wilbourn, 219 Iowa 120, 257 N.W. 571; State v. Johnson, 212 Iowa 1197, 237 N.W. 522. We find nothing in these precedents contrary to the views herein expressed.

State v. Stack, supra, upholds the sufficiency on demurrer of an indictment which charged breaking and entering a store at a certain location in Dubuque in violation of what is now Code section 708.8, although it did not allege the breaking and entering were 'with intent to commit any public offense.' Had the indictment charged the breaking and entering were with intent to commit larceny we think Stack could not have been convicted on proof he intended to commit rape, although either would be a violation of section 708.8. We need not analyze other decisions the state cites on this phase of the case.

If the indictment here had merely charged a violation of section 528.6 without specifying the means by which it was committed the state might be in better position to urge the contention now considered. However, we do not mean to imply defendant would not then be entitled to a bill of particulars if he requested it. Code section 773.5; Annotation, 5 A.L.R.2d 444.

III. The state assigns error in giving the first paragraph of instruction 15 which told the jury that if the $45,000 was loaned to a partnership known as Aurora Cattle Account then defendant did not, within the meaning of section 528.6, use or borrow for himself, directly or indirectly, any money belonging to the...