State v. McEnroe

• Decision Date: 09 December 1938
• Citation: 68 N.D. 615,283 N.W. 57
• Parties: STATE v. McENROE.
• Court: North Dakota Supreme Court

68 N.D. 615

283 N.W. 57

STATE

v.McENROE.

Supreme Court of North Dakota.

Cr. 160.

Dec. 9, 1938.

Syllabus by the Court.

1. In passing upon a motion for a new trial the trial court is clothed with a wide discretion and his determination in that regard will not be disturbed unless there is an abuse of such discretion.

2. Where a motion for a new trial is granted a stronger showing must be made on appeal in order to secure a reversal than would be required where the motion is denied.

3. The record in the instant case is examined, and it is held that there was no abuse of discretion on the part of the trial court in granting the motion for a new trial.

4. Under section 61, Constitution of North Dakota, providing that “No bill shall embrace more than one subject which shall be expressed in its title * * *” any matter may be included in an act which relates exclusively to, or is germane or auxiliary to, the subject expressed in the title of the act.

5. Subsection (3) of section 40, chapter 94, Session Laws 1931, is construed and is held to create but one offense that may be perpetrated in the several modes described therein.

6. Where a statute declares an act unlawful when perpetrated in any one or all of several modes, the information may charge the act in separate counts, basing each count upon the different modes specified. State v. Bickford, 28 N.D. 36, 147 N.W. 407, Ann.Cas.1916D, 140.

7. The information in the instant case is examined and it is held, for reasons stated in the opinion, that the same does not state facts sufficient to constitute a public offense.

Appeal from District Court, Cass County; M. J. Englert, Judge.

T. H. McEnroe was convicted of making a false report of the pecuniary condition of a building and loan association. From an order granting a new trial, the State appeals.

Order affirmed.

MILLER, District Judge, dissenting in part.

P. O. Sathre, Atty. Gen., Milton K. Higgins, Asst. Atty. Gen., and A. R. Bergesen, State's Atty. of Cass County, and Odin J. Strandness, Asst. State's Atty., both of Fargo, for the State.

Shure & Murphy, of Fargo, for respondent.

T. H. McEnroe, of Fargo, in pro. per.

NUESSLE, Judge.

The defendant McEnroe was informed against on a charge of violating subsection (3) of section 40 of chapter 94, Session Laws 1931, which provides that a director, officer, agent or employee of any building and loan association who wilfully makes or concurs in making or publishing any written report, exhibition or statement of its affairs or pecuniary condition containing any material statement which is false, shall be guilty of a felony. The defendant was tried on this charge and a verdict of guilty was returned against him. He moved in arrest of judgment but this motion was denied and judgment was entered on the verdict. He then made a motion for a new trial, which was granted, and a new trial was ordered. Thereupon the State perfected the instant appeal.

Chapter 94, Session Laws 1931, is entitled, “An Act to provide for the government and regulation of building and loan associations in the State of North Dakota; to provide for the organization and operation of such associations, and [a repeal clause].” Pursuant to the terms of this chapter domestic building and loan associations may be incorporated and do business as such within the state of North Dakota. Foreign building and loan associations complying with the requirements of the provisions of the chapter may likewise do business within the state. Sections 38, 39 and 40 thereof, with which we are particularly concerned, read as follows:

Ҥ 38. Annual Statement-Form-Where Filed-Publications.] Every building and loan association authorized to do business in this state shall, annually on the thirty-first day of December, or within thirty days thereafter file with the State Examiner a full detailed report, in writing, of the affairs and business of the association for the fiscal year ending on December thirty-first, showing its financial condition at the end of said year. The statement shall be in such form and contain such information as may be prescribed by the State Examiner. It shall be sworn to by the secretary of such association and its correctness attested by at least three directors or an auditing committee appointed by the board of directors. The original shall be filed with the State Examiner within thirty days after the close of the fiscal year, and in such form as the State Examiner shall require shall be published once in a newspaper published in the town in which the association is located, or if no newspaper is published in the town in which the association is located, then in one published nearest thereto in the same county, and such proof of publicationshall be furnished at such times and in such manner as may be required by the State Examiner.

§ 39. Report To State Examiner. Publication.] Every building and loan association shall make to the State Examiner a report of condition whenever requested to do so by the State Examiner, according to the form which may be prescribed by him, verified by the oath or affirmation of the president, vice-president or secretary of such association, and attested by the signature of at least two of the directors. Each such report shall exhibit in detail and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the State Examiner within fifteen days after the receipt of a request or requisition therefor from him.

§ 40. Obtaining Property By Fraud, False Reports, Inspection of Books.] A director, officer, agent, or employee of any building and loan association who:

(1) ******

(2) ******

(3) Wilfully makes or concurs in making or publishing any written report, exhibition or statement of its affairs or pecuniary condition, containing any material statement which is false; or

(4) ******.”

The information on which the defendant was tried charges:

“* * * that heretofore * * * one T. H. McEnroe * * * did commit the crime of wilfully making a false written report and statement of a building and loan association, committed as follows, towit:

Count One.

That at the said time and place the said defendant, T. H. McEnroe, was an officer, to-wit: the President of the Washington Building and Loan Association, a building and loan association corporation of Fargo, North Dakota, and as such officer the said Defendant did then and there wilfully, fraudulently and feloniously make a written report and statement of the affairs and pecuniary condition of the said building and loan association, which was thereon designated the annual report of the condition of the said association at the close of business on December 31, 1935, and which report contained in the portion thereof which purports to set forth the resources of the said association, a material false statement, to-wit: “Cash on hand and in bank, $2,353.87” whereas in truth and in fact the cash on hand and in bank of the said association at the close of business on December 31, 1935 was but $638.12, and which false report the said Defendant made, knowing the same to be false as to the said statement of cash on hand and in bank, by then and there signing and affixing his name to the said report at the conclusion thereof, as President of said association and corporation and sending and presenting the said report to the State Bank Examiner of the State of North Dakota and filing the said report with the said examiner.

Count Two.

(Count Two is identical with Count One, excepting that where in Count One the word ‘make’ is used in Count Two the words ‘concur in making’ are used.)”

When arraigned the defendant demurred to the information on the grounds: (1) That section 40, supra, is unconstitutional and void because enacted contrary to the requirements of section 61 of the Constitution of the State of North Dakota, which provides “No bill shall embrace more than one subject, which shall be expressed in its title * * *”; (2) that more than one offense is charged in the information contrary to the provisions of section 10688, Comp.Laws 1913; and (3) that the facts stated in the information are not sufficient to constitute a public offense. The demurrer was overruled.

The motion for a new trial was predicated upon (1) errors of law arising during the course of the trial; (2) misdirection of the jury in matters of law; (3) that the verdict was contrary to law and against the evidence; and (4) a showing of newly discovered evidence material to the defense which the defendant could not with reasonable diligence discover and produce at the trial. The court granted the motion and ordered a new trial. In his memorandum opinion the trial judge, after stating that many errors were assigned as grounds for said motion, said, among other things: “After studying the case at some length, I have concluded that no good would come from a discussion of the various errors assigned by the defendant. The evidence in this case is of a very peculiar nature and character * * *.” The court then stated that in view of the character of the testimony of the principal witness he would discuss but one error assigned, and after a discussion of this error, assigned on account of an alleged erroneous ruling with respect to the admission of evidence, further said: “In view of this situation, and the nature and character of the testimony in the case, the court is of the opinion that a new trial should be granted.”

[1][2][3][4] The record is long. It would be profitless to analyze and review it at length here. It is enough to say, as did the trial court, that the evidence is of a peculiar nature and character. The trial court who saw and heard the witnesses and breathed the atmosphere of the trial, was of the opinion that the motion for a new trial should be granted. While the assignment of error which he discusses in his memorandum opinion is based on a ruling on evidence,...