State v. Haesemeyer, 48851
| Decision Date | 26 July 1956 |
| Docket Number | No. 48851,48851 |
| Parties | STATE of Iowa, Appellee, v. W. L. HAESEMEYER, Appellant. |
| Court | Iowa Supreme Court |
Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, John L. Mowry, Marshalltown, and Carl Smedal, Ames, for appellant.
Dayton Countryman, Atty. Gen. of Iowa, Raphael R. R. Dvorak, Asst. Atty. Gen., Kent Emery, Asst. Atty. Gen., Charles King, Marshall County Atty., and J. D. Robertson Special Prosecutor, Marshalltown, for appellee.
The indictment, returned October 8, 1954, and amended May 2, 1955, charged defendant, president of the Central State Bank of State Center, Iowa, with the statutory (code section 528.84) offense of exhibiting with intent to deceive on May 29, 1952, to Edward B. Wilkinson, a state bank examiner, two false chattel notes of Martin Schaper, viz.: One dated October 10, 1951, for $45,000, purporting to be secured upon '300 Head Choice Steer Calves'; the other, dated February 1, 1952, for $15,180 upon '93 head of choice Hereford heifers.' The bank was payee in each and each described the security as located upon Schaper's farm near State Center.
By way of amendment or bill of particulars the falsity was alleged to be that the described 'security did not exist and the defendant knew it was false at the time it was so exhibited.'
There was a plea of not guilty and a verdict and judgment from which defendant appeals. It is conceded that when the respective notes were signed and until the last week of April, 1952, none of the security therein described was in Iowa, and that when exhibited to the examiner only part was at the designated location.
It also appears without question the notes, though signed by Schaper alone, were in fact obligations of a then unrevealed partnership ('Aurora Cattle Account') consisting of defendant and Schaper; and defendant contends it owned cattle at the respective dates of execution which in each case would fit the description of security in the note and were to be brought to Iowa.
The 300 cattle in the larger note (exhibit B) are described as branded with a 'bell' brand and as averaging '345#--together with feed and care to fatten for market together with all increase and issue thereof and all additions thereto' and as given 'to secure purchase price.' Schaper testifies the description of security was not in the note when he signed and he never knew of its insertion until in June, 1952. That point is in factual dispute.
Defendant claims that when exhibit B was executed the partnership actually owned 305 head of that 'bell' brand and description in the yards of a cattle company from which they had been purchased near Clovis, New Mexico, that they 'were thereafter taken to Aurora, Nebraska, where they were kept until the last week in April, 1952, at which time they were removed' to Iowa, and on May 29, when the bank was being examined, 68 were on Schaper's farm and the rest in other Iowa pastures rented by the partnership.
The claim as to the 93 head of Hereford heifers in exhibit I is similar. It describes the cattle as 'weighing 436 pounds average together with sufficient pasture, silage, hay, and corn to fatten for market.' They were part of 203 head of that same description and among the 987 bought at Clovis. They were at Aurora, Nebraska, on February 1, 1952, when exhibit I was executed, and were also moved to Iowa the last week in April. It seems undisputed that on May 29, 1952, the partnership owned 300 head of 'bell' brand and 93 head of Hereford heifers that fit the descriptions in the two notes.
The obvious illegality of the president becoming secret debtor of the bank for these and other amounts (see code sections 528.6 and 528.7) was only incidental to proof of the State's alleged theory of 'falsity.' Nor is reliance placed by the State on the misdescription of location of the cattle except as a part of the proof of the non-existence of real security.
The State contends these papers were false and unsecured when executed and were not originally intended to cover any particular animals; that the partnership never owned but two bunches, viz.: 308 head of Texas cattle branded 'A B' purchased in Nebraska of Roe Black of Aurora (not involved in this case); and the 987 head bought from various ranches around Clovis, New Mexico, among them the 305 'bell' brand and the 203 Hereford heifers.
These 987 head were bought by Schaper while in New Mexico, probably the latter part of September, 1951. The down payment of $15,000 was paid by check drawn by him down there and honored by the Bank under arrangement with the defendant. The cattle were transferred by various shipments to Aurora, Nebraska, and eventually covered by separate notes and mortgages until refinanced by the $49,285 paper (exhibit C) hereinafter referred to. The 305 head of Choice Steer Calves, weighing 365 pounds each, branded with the 'bell' brand * * *,' according to Schaper's undisputed testimony were the only 'bell' brand cattle the partnership ever owned and were covered by chattel note exhibit C, dated November 1, 1951, due in one year, payable to defendant's Bank in the amount of $49,285.
This exhibit C recites it was given 'to secure the money advanced to purchase the within described cattle'; it also recites 'free from encumbrance, and now in the undersigned's possession on F. E. Edgerton feed yards at Aurora, Nebraska (technical land description inserted) being the 'Roe Black Ranch." Schaper testifies it was returned to him 'in its present form * * * at the time the whole Aurora Cattle Account was refinanced in June, 1952.'
This instrument also shows it was acknowledged before a notary public in defendant's bank and endorsed 'without recourse' to a Chicago bank. It was later returned to Schaper with his signature torn off and also a part of the filing stamp dated 'November 5, C.E. Scov . . ..' Schaper says it was so returned in June, 1952. There is later testimony tending to show the torn name on the filing mark was 'C.R. Scoville County Clerk' in Nebraska, and that an identical copy was on file out there in that county.
Exhibit D, apparently covering the same cattle, is described as a 'promissory note.' It is for the same amount as exhibit C ($49,285) and is stamp-dated October 19, 1951, crossed through with pencil and Nov. 5 written in and the name of payee blank. Schaper's signature is torn off. The form of the instrument is the same as that of exhibit B. He says it was returned to him with exhibit C.
Much time and argument were spent at the trial on the admissibility of exhibits C and D and other somewhat similar instruments related to the cattle described in the $15,180 note also here involved.
The arguments made by attorneys for the State for their admission are difficult to summarize. They probably come to this: There was never any herd of '300' head of 'bell' branded cattle, and none that were not otherwise mortgaged to cover their purchase price. The 305 head were so mortgaged for $49,285 by exhibits C and D, the mortgage was transferred 'without recourse' and eventually paid.
As said in oral argument in the trial court: It is not a case of two liens on the same lot of cattle because there never was any cattle there at the place described in exhibit 'B'.
To all of which defendant's attorney in trial court argument responds: 'In other words,...
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State v. Haesemeyer
...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 The part of section 528.6 submitted ......