State v. Ostby

• Decision Date: 23 November 1926
• Docket Number: 37364
• Citation: 210 N.W. 934,203 Iowa 333
• Parties: STATE OF IOWA, Appellee, v. J. O. OSTBY, Appellant
• Court: Iowa Supreme Court

210 N.W. 934

203 Iowa 333

STATE OF IOWA, Appellee, v. J. O. OSTBY, Appellant

No. 37364

Supreme Court of Iowa, Des Moines

November 23, 1926

OPINION ON REHEARING MARCH 12, 1927.

Appeal from Hancock District Court.--H. M. KEPLER, Judge.

Defendant was indicted for the crime of fraudulent banking. He entered a plea of not guilty, and upon trial was convicted. He appeals.

Affirmed.

Chester L. Nichols, Oliver Gordon, T. J. Enright, and J. E. Williams for appellant.

Ben J Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, John A. Senneff, and Verne C. Grau, for appellee.

FAVILLE, J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.

OPINION

FAVILLE, J.

Appellant was the sole owner of an unorganized bank, which he operated under the name and style of the Farmers & Merchants Bank of Miller. On the 15th of March, 1924, he was indicted by the grand jury of Hancock County, charged with the crime of fraudulent banking, the particular charge being that, on or about the 24th day of January, 1924, he received from one Anderson a deposit in the sum of $ 12.12, at a time when the said bank and the said appellant were insolvent, and when appellant knew said bank to be insolvent.

I. When the first witness for the State was called, and after testimony preliminary in character had been given, the appellant interposed the following objection:

"At this time of the first reference to this bank of Miller, I desire to object to any further testimony in this case, on the ground that the indictment does not state a public offense,--does not state, as I understand it, those essentials which go to make up the charge of fraudulent banking, within the meaning of the Iowa statute."

At the close of all of the testimony, the appellant moved the court to instruct the jury to return a verdict of not guilty, among other things, "upon the ground and for the reason that the indictment upon which this transaction is based does not state a public offense." The same question was raised by the motion for new trial. In argument, appellant contends that the indictment was fatally defective "because it does not state that the defendant knew that he himself was insolvent at the time said deposit was received."

Even if the indictment was defective in this regard, the objection thereto is not available to the appellant, upon the record made. We had a similar question before us in State v. Gregory, 198 Iowa 316, 198 N.W. 58. In that case the indictment was for fraudulent banking, and failed to allege knowledge of insolvency on the part of the defendant. It was contended that the indictment was fatally defective because of such omission. No attack on the indictment was made by demurrer or motion before the trial began, and, as in the instant case, the point was raised during the trial, by objections to testimony offered by the State and by motion to direct a verdict. We held that omission in the indictment to allege that the defendant received the deposit knowing of the insolvency of the bank was failure to make a material allegation therein. Paragraph 9 of Section 5289, Code Supplement, 1913 (Code of 1924, Section 13791), was in force at the time this indictment was returned. Said provision is as follows:

"All objections to the indictment relating to matters of substance and form which might be raised by a plea in abatement shall be deemed waived if not raised by the defendant before the jury is sworn on the trial of the case."

This section was also in force at the time of the decision in State v. Gregory, supra. In considering the same, we said:

"The expression 'substance,' used in the statute, unquestionably is referable to a material allegation in the indictment, such as the omitted allegation in the indictment before us: that is, that defendant had knowledge of the insolvency of his bank. 'Substance' is defined in Webster's Dictionary: 'The essence; that which makes a thing what it is, or gives it its essential nature. Substance in this sense is always the essence of an existent thing; it is essence plus existence; a real or determinate subject. * * * The most important element in any existence; the characteristic and essential components of anything; the main part.' The above quoted amendment to Code Section 5289 has been before us for construction and application in State v. Boggs, 166 Iowa 452, 147 N.W. 934; State v. Cooper, 169 Iowa 571, 151 N.W. 835. In the Boggs case, there was a demurrer to the indictment, but we held that it 'was not sufficiently specific to raise the objection now urged as a defect in the indictment, and that, therefore, such objection is not now available to the defendant by a motion in arrest.' In the Cooper case, attack on the sufficiency of the indictment was made in motion to arrest, and we said: 'We are of the opinion that the objections now urged, if they have any merit, are such as that they should have been made before the swearing of the jury, and they were waived by not making a timely objection.' Counsel for appellant urge that the motion in arrest of judgment should have been sustained, under the provisions of Code Section 5426, notwithstanding the provisions of Paragraph 9 of Section 5289, above quoted. Code Section 5426 gives two grounds for motion in arrest of judgment, as follows: '1. Upon any ground which would have been ground of demurrer: 2. When upon the whole record no legal judgment can be pronounced.' We think it must be held that Section 5426 is modified by the later enactment of Paragraph 9 of Section 5289, relating to waiver of defects in an indictment. To hold otherwise would be to say that said Paragraph 9 means nothing. The State introduced evidence to show that appellant had knowledge of the insolvency of his bank at the time the deposit in question was received, and the court in instructions required the jury to find that appellant had knowledge of such insolvency, in order to convict. The court did not err in rulings on this question."

The foregoing is a complete answer to appellant's contention at this point.

The appellant contends that said section of the statute is in violation of the Fifth Amendment to the Federal Constitution. The Fifth Amendment is as follows:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury."

In State v. Wells, 46 Iowa 662, we said:

"It is insisted that the ordinance is in conflict with Article 5 of the amendments of the Constitution of the United States, which provides that 'no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.' It is sufficient to say, upon this point, that this provision of the Federal Constitution is applicable alone to the exercise of power by the United States, and is not a restriction upon the legislative authority of the States. Barron v. Mayor and City of Baltimore, 7 Peters 243."

The Fifth Amendment of the Federal Constitution is no limitation upon the power of the state to provide for prosecutions for infamous crimes without an indictment by a grand jury.

An amendment to the Constitution of the state, adopted in 1884, provides:

"The grand jury may consist of any number of members not less than five, nor more than fifteen, as the general assembly may by law provide, or the general assembly may provide for holding persons to answer for any criminal offense without the intervention of a grand jury."

The general assembly has provided for holding persons to answer for a criminal offense without the intervention of a grand jury, by county attorney's information.

Section 13791, Code of 1924, is not affected by the Fifth Amendment to the Federal Constitution, and does not violate any of the provisions of the Constitution of this state.

II. It is contended by the appellant that the venue of the crime was not proven. It was charged in the indictment that the offense was committed in the town of Miller, county of Hancock, and state of Iowa. It was abundantly established that the bank was located in the town of Miller. The witness Suhumski testified:

"Have lived in Miller about 4 years; in this county about 56 years. I've known Ostby since he came to Miller."

The witness Anderson testified:

"I am three miles west of Miller, on a farm; have lived in this county, more or less, all my life. I am a farmer. Miller is not an incorporated town, that I know of; has less than 100 population. There is just one elevator there, a company concern. There has been one store, and was another, some time ago, and there is a post office there. Miller was my trading point principally."

The witness Halverson testified:

"I live two miles south and east of Miller, in Ellington Township, Hancock County."

The case is ruled by our recent holding in State v. Caskey, 200 Iowa 1397, 206 N.W. 280, wherein, after reviewing our previous holdings, we said:

"We have also determined that venue may be proven by inference, as well as by direct assertion by the witness. State v. Meyer, supra . In other words, a sum total of these holdings is that the witness need not testify in words that the crime was committed within the county in question, but that such fact, if fairly inferable from the testimony given, is sufficient to carry the question of venue to the jury."

The evidence quoted, together with other testimony in the case, was sufficient to take to the jury the question of venue.

III. Appellant contends that the transaction charged in the indictment did not constitute a deposit, within the meaning of the statute. It appears that there was an unincorporated association of individuals at Miller, which operated under the name of the Miller Shipping...