State v. Heaton

Decision Date31 January 1928
Docket NumberNo. 5383.,5383.
Citation56 N.D. 357,217 N.W. 531
CourtNorth Dakota Supreme Court
Syllabus by the Court.

Following State of North Dakota ex rel. v. District Court of Burleigh County, 19 N. D. 819, 124 N. W. 417, Ann. Cas. 1912D, 935, it is held that the Attorney General has the right to appear before the grand jury at any time when in his judgment he deems it for the best interests of the state so to do, and that each of his assistants has the same right.

Relevancy is, in the main, the test of the admissibility of evidence, and, if evidence is relevant to the issue on trial, it is admissible, unless shown to be subject to some rule of exclusion.

Though the state in the trial of a criminal offense may not introduce evidence of the commission of other specific crimes merely to prove the depravity of the defendant or his criminal disposition, nevertheless, if evidence otherwise relevant is offered, the fact that incidentally it tends to establish collateral matters or to prove collateral crimes does not render it inadmissible. Held, for reasons stated in the opinion, that in the instant case the knowledge and intent of the defendant were in issue, and his motive was relevant, and that the evidence objected to by the defendant tended to establish these mental conditions, and was therefore admissible, although it might also tend to prove other and collateral crimes.

The doctrine of res judicata is applicable in criminal actions; but, held, for reasons stated in the opinion, that the rule of estoppel by judgment does not apply when the facts upon which a former verdict was based are offered in evidence in a subsequent prosecution for a wholly different crime for the purpose of establishing a state of mind on the part of the defendant, and not for the purpose of proving independently the commission of the collateral offense.

Appeal from District Court, Grand Forks County; W. J. Kneeshaw, Judge.

Frank C. Heaton was convicted of making a false entry in the books of a bank of which he was an officer, and he appeals. Affirmed.Francis Murphy, of Fargo, for appellant.

George F. Shafer, Atty. Gen., and George A. Bangs, Sp. Asst. Atty. Gen., for the State.


The defendant, Frank C. Heaton, was indicted by a grand jury of Cass county, for that, on January 14, 1921, he willfully and knowingly subscribed and made a false statement and entry in the books of the Scandinavian American Bank of Fargo, of which he was then an officer, contrary to the provisions of section 5174, C. L. 1913, as amended by chapter 57 of the Session Laws of 1915. To the charge as contained in this indictment the defendant entered a plea of not guilty. Thereafter such proceedings were had that the cause was removed from the county of Cass and came on for trial in the county of Grand Forks. A verdict of guilty resulted.

It appears that a Special Assistant Attorney General was present before the grand jury during the taking and receiving of testimony upon which the indictment was later returned. The Special Assistant Attorney General was not present, however, during the deliberations of the grand jury.

The particular charge laid against the defendant, and on which he was tried, was that on January 14, 1921, the defendant made a false entry upon the books of the bank, which purported to show the amount of savings deposited therein at the close of business on that day to be $2,909.03, when in fact the amount of such savings then on deposit was the sum of $46,851.30.

The evidence offered and received on the part of the state during the trial tends to establish the following facts: The Scandinavian American Bank was a banking corporation engaged in business at Fargo. The defendant was one of its assistant cashiers. As such cashier he was charged generally with the duty of looking after the business affairs of the bank, and particularly with the conduct and supervision of the savings department. He had charge of the books of this department. On January 14th he entered in the general ledger-cash of the bank a statement purporting to show the total savings then on deposit in the bank to be $2,909.03. In fact, the total of such savings was at that time $46,851.30. The state proffered, and the court, over the objection of the defendant, received, evidence tending to establishthat in September, 1918, the defendant, having charge of the books and records of the bank, began a systematic course of falsification by which a fictitious balance was maintained in these books. This was done through the manipulation of the accounts, first of the Merchants' National Mutual Fire Insurance Company, later of the Agricultural College, and finally of the savings accounts, and culminated in the entry on account of which the indictment in the instant case was returned.

The original discrepancy was $300.00. This was increased from time to time until August, 1919, when it was $18,000. At that time the balance to the credit of the Agricultural College as shown by the books of the bank was $18,000 less than the college actually had on deposit in the bank, and as shown by the reconcilement statement issued to the college. But it had become necessary under the law for the college to withdraw its deposit from the Scandinavian American Bank. So just prior to the withdrawal the true balance of the college was restored on the books of the bank by showing a deposit to its credit of $18000, which in fact was not made. At the same time the books of the bank were made to show withdrawals from the savings account aggregating $18,000. In fact, there were no such withdrawals. Thus the true balance of the Agricultural College was restored on the books of the bank, the savings deposit account was falsely depleted, and the fictitious balance was maintained in the general ledger-cash of the bank. Thereafter the defendant continued almost exclusively in charge of the savings department. He had an office or cage in which he worked when he received savings deposits. At intervals, as deposits were made, he entered the same as made in the pass books of the depositors, but did not show them in the deposit ledger. The deposit ledger was a loose-leaf book. When deposits were made which he did not wish to appear in the ledger, he removed the sheets on which the accounts thereof appeared from the ledger. Nearly 100 of these accounts were thus abstracted, and were later found in a compartment in his cage. So the savings deposit ledger did not disclose the true amount of the savings deposits, but did show the amounts that were entered by the defendant from time to time in the general ledger of the bank as representing the total of such deposits. Thus the defendant continuously increased the discrepancy between the amounts of the actual savings deposits in the bank and the false totals which he maintained in the savings deposit ledger and the general ledger. On January 14th the true amount of the savings deposits, as ascertained by taking into consideration the abstracted ledger sheets in connection with the remainder of the deposit ledger, was $46,851.30. The ledger, not taking into account these abstracted sheets, showed $2,909.03, and this was the amount as entered by the defendant in the general ledger-cash.

The evidence as produced by the state overwhelmingly established the facts as above stated. This evidence consisted of the books and records of the bank, the abstracted ledger sheets, reconcilement statements to depositors, depositors' pass books–relevant entries in all of these books and papers being in the handwriting of the defendant, or shown to have been entered with his approval and under his direction–of written statements made by the defendant, and of the testimony of numerous witnesses, other officers of the bank, depositors, and others. In all there was a very great volume of this evidence.

When the evidence above referred to was offered by the state, it was objected to by the defendant on the ground that it was so great in volume as to obscure the real point in issue; that it related to transactions too remote in point of time to have any probative value; that it established other and collateral offenses; that the matters thus established had been investigated in a prior embezzlement action, on the trial of which the defendant had been acquitted; and that all such matters were thus conclusively determined in his favor. After the evidence was received, the defendant further challenged it by motions to strike, which were denied.

Now it appears (from offers of proof and otherwise) that the defendant had theretofore been indicted and tried on an embezzlement charge predicated upon substantially the same evidence as was offered in the instant case. Many, but not all, of the witnesses called in the instant case testified on the trial of the embezzlement case, and gave the same testimony therein. Likewise, much of the documentary evidence received in the instant case was offered and received on the trial of the embezzlement case. On the trial of that case the defendant, charged with the embezzlement of some $78,000, was found guilty of an embezzlement of less than $20. The fact of the prior trial and the verdict returned therein, and that the same were grounded upon the same evidence offered and received in the instant case, was a basis for objection as interposed by the defendant to the introduction of the evidence in question. When this evidence was received, the defendant sought to establish by cross-examination that the same testimony and evidence had been received on the trial of the embezzlement case, and was the basis for that prosecution. On objection by the state the defendant was denied the right to thus cross-examine. Again, after the state rested, the defendant attempted to make the same proofs, and, among other evidence, offered the judgment roll and verdict in the embezzlement action. This evidence was rejected by ...

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