State v. Huffman

• Decision Date: 15 April 1936
• Docket Number: 25469.
• Citation: 1 N.E.2d 313,131 Ohio St. 27
• Parties: STATE v. HUFFMAN.
• Court: Ohio Supreme Court

1 N.E.2d 313

131 Ohio St. 27

STATE v. HUFFMAN.

No. 25469.

Supreme Court of Ohio.

April 15, 1936

Error to Court of Appeals, Williams County.

Syllabus by the Court .

1. We have no common-law crimes in Ohio; neither do we have common-law criminal procedure. Consequently, if a statute defining an offense in Ohio provides that it must be committed with a particular intent, such intent becomes a material element of the offense and must be alleged in the indictment and proved on trial. On the contrary, if a statute defining an offense is silent on the question of intent, it is not necessary to allege and prove an intent to commit the offense.

2. Criminal cases must be reviewed in Ohio in the light of section 13449-5, General Code, which, amongst other things provides: ‘ Nor shall any judgment of conviction be reversed in any court * * * for any misdirection of the jury unless the accused was or may have been prejudiced thereby.’

3. Section 710-172, General Code, is copied from the National Banking Act. It is a sort of omnibus criminal statute and provides in part that: ‘ Whoever being an officer * * * of a bank, embezzles * * * any of the money * * * of such bank * * * or makes a false entry in a book * * * with intent to defraud or injure the bank * * * or to deceive an officer of the bank or an agent appointed to examine the affairs of such bank,’ shall be punished as therein provided. If a party is indicted thereunder for embezzlement and making false entries, two specific intents are involved, namely, an intent to defraud and an intent to deceive, and such intent in either instance becomes a material element of the offense and must be alleged and proved.

4. The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person, and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court.

5. Where the counts in an indictment are interrelated, the proof of one may be considered by the jury as reflecting upon the intent with which the other was committed, if in fact it does so reflect.

6. Abstract propositions of law in a charge are not always hurtful, and, unless it appears that they may have been so the giving of them, while never to be approved, is not reversible error.

7. Where the issues in a criminal case involving the offenses of embezzlement and making false entries by an officer of a bank have been correctly defined, and in such definition the specific intent is pointed out and declared to be a material element of the offense, it is not reversible error for the court to instruct the jury as follows: ‘ It is not always possible to prove a purpose by direct evidence, for purpose and intent are subjective facts. That is, they are within the mind of man, and hence, in determining purpose, you may look to all the surrounding circumstances, including what was said and done in relation thereto; bearing in mind the presumption of law, that every one is presumed to intend the natural and probable consequences of his voluntary acts, unless the circumstances are such as to indicate the absence of such intent. When an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts, since the law presumes a criminal intent from an unlawful act knowingly done.’ Such an instruction, although an abstract proposition of law, was not prejudicial.

On October 5, 1933, the grand jury of Williams county, Ohio, returned an indictment, containing sixty-two counts, against J. F. Huffman, under favor of section 710-172, General Code:

‘ Whoever being an officer, employee, agent or director of a bank, embezzles, abstracts, or wilfully misapplies any of the money, funds, credit or property of such bank whether owned by it or held in trust, or wilfully and fraudulently issues or puts forth a certificate of deposit, draws an order or bill of exchange, makes an acceptance, assigns a note, bond, draft, bill of exchange, mortgage, judgment or decree, or makes a false entry in a book, report or statement of such bank, or makes a false entry of interest or principal on a note or any other asset of such bank, or makes a false statement or certificate as to a trust deposit, fund or contract, for or under which such bank is acting as trustee, or fictitiously borrows or solicits, obtains or receives money for the bank not in good faith intended to become and be the property of the bank, with intent to defraud or injure the bank or another person, or corporation, or to deceive an officer of the bank or an agent appointed to examine the affairs of such bank, or publishes a false statement or report relating to the financial condition of the bank with intent to defraud or injure it or another person or corporation, shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than thirty years, or both.’

Huffman was arraigned and entered a general plea of not guilty to the indictment.

Two of the counts were nolled during the progress of the trial. Accordingly, Huffman was tried on the remaining sixty counts, of which the odd-numbered counts charged him with making false entries and the even-numbered counts charged him with embezzlement of the sums of money as to which the false entries were made, in violation of the statute.

The indictment charged in effect that during the years 1929, 1930, 1931, and 1932 Huffman, as assistant cashier of the Kunkle State Banking Company of Kunkle, Ohio, made the false entries and embezzled the sums set out in the different counts of the indictment. It charged that the false entries were made with intent to injure and defraud the banking company and with intent to deceive the bank examiner of the state of Ohio, and that he embezzled the various sums with intent to injure and defraud the banking company.

Upon trial Huffman was found guilty upon all sixty of the counts contained in the indictment.

Motion for new trial was duly made and overruled by the trial court, and Huffman was sentenced. Error was prosecuted to the Court of Appeals of Williams county.

In his charge to the jury the trial judge used the following language:

‘ To the indictment in this case the defendant has entered a plea of not guilty. This denies and puts in issue each and every averment of the indictment. This plea of not guilty, places upon the state, Before it can ask a conviction by your verdict, to establish by evidence which convinces you beyond a reasonable doubt the truth of each and every averment in the indictment essential to constitute the crime charged.’

The court then proceeded to define the issues by analyzing and detailing the material elements of the indictment, and further said:

‘ Sixth: That the defendant unlawfully, fraudulently and wilfully, and without the authority of the Board of Directors of said banking company did commit said alleged wrongful acts with the intent to injure and defraud said banking company or with the intent to deceive the bank examiner of The State of Ohio, either or both.’

On the question of ‘ intent’ he used the following language:

‘ To constitute a criminal offense, two things must be established, the intent to do the wrong or commit the act and the performance of the act, or the commission of the wrong in pursuance of the intent, and the intent and the act must concur in point of time.

‘ It is not always possible to prove a purpose by direct evidence, for purpose and intent are subjective facts. That is, they are within the mind of man, and hence, in determining purpose, you may look to all the surrounding circumstances, including what was said and done in relation thereto; bearing in mind the presumption of law, that every one is presumed to intend the natural and probable consequences of his voluntary acts, unless the circumstances are such as to indicate the absence of such intent. When an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts, since the law presumes a criminal intent from an unlawful act knowingly done.’ (Italics ours.)

In the petition in error filed by Huffman in the Court of Appeals, there were five assignments of error; but the Court of Appeals in its opinion held against him on all propositions except as to the charge of the court on the question of intent, and on that ground the Court of Appeals reversed the judgment of the court of common pleas and remanded the case for retrial.

The state of Ohio prosecutes error to this court to reverse the judgment of the Court of Appeals, and assigns as error:

‘ 1. Said Court of Appeals erred in its judgment of reversal in reversing the judgment of the Court of Common Pleas;

‘ 2. Said Court of Appeals erred in reversing the conviction of said J. F. Huffman of the charges laid in the indictment herein upon the ground of error in the instructions given to the Jury by the Trial Court.’

Russell V. Maxwell, Pros. Atty., and A. L. Gebhard, both of Bryan, for the State.

D. A. Webster and Newcomer & Parker, all of Bryan, for defendant in error.

STEPHENSON, Judge.

There is but one question before us; namely, Did the Court of Appeals err in reversing the court of common pleas for error in its general charge to the jury on the question of intent?

We have no common-law crimes in Ohio; neither is there common-law criminal procedure in Ohio. We do, however, recur to the common law at times to get whatever light it may give on the construction of criminal statutes.

The common-law distinction between...