State v. Quackenbush

• Decision Date: 20 July 1906
• Citation: 108 N.W. 953,98 Minn. 515
• Parties: STATE v. QUACKENBUSH.
• Court: Minnesota Supreme Court

98 Minn. 515

108 N.W. 953

STATE

v.QUACKENBUSH.

Supreme Court of Minnesota.

July 20, 1906.

Appeal from District Court, Le Sueur County; P. W. Morrison, Judge.

Livingston Quackenbush was convicted of accepting deposits after the insolvency of the bank of which he was president. From an order denying a new trial, and from the judgment, he appeals. Affirmed.

Syllabus by the Court

The defendant was indicted for a violation of chapter 219, p. 504, Gen. Laws 1895 (Rev. Laws 1905, § 5118). The indictment charged that ‘Livingston Quackenbush did then and there, as a private banker, wrongfully and feloniously accept and receive on deposit in said bank from Philip Edelkam, certain money, to wit, the sum of one hundred dollars ($100.00), the property of the said Philip Edelkam, good and lawful money and current as such under the laws of the state of Minnesota, and of the value of one hundred dolars ($100.00), a better description of which said money is to the grand jury unknown.’ On objection to the sufficiency of the indictment, held:

(a) That the description of the property deposited, when taken in connection with the allegation that a better description is to the grand jury unknown, is sufficient.

(b) Good and lawful money, and current as such under the laws of the state, means good and lawful money such as is in common circulation in the community. The words ‘under the laws of the state of Minnesota’ are surplusage.

(c) An indictment under this statute need not allege an intent on the part of the defendant to defraud the depositor. A fraudulent intent is not by the statute made an essential element of the crime.

Held, further, that the solvency of a bank is a matter which is peculiarly within the knowledge of its directors and other managing officers, and it is therefore presumed that they have knowledge of the condition of the bank. In a prosecution under this statute for accepting deposits when the bank is insolvent and the insolvency is known to the defendant, or he has good reason to know such fact, the presumption is that he has such knowledge. But the presumption is one of fact, which may be overcome by other evidence. Thomas Hessian and C. D. O'Brien, for appellant.

A. J. Edgerton, Co. Atty., and E. T. Young, Atty. Gen., for the State.

ELLIOTT, J.

The defendant, Livingston Quackenbush, commenced business as a private banker in Le Sueur in the year 1875, with a capital of about $20,000, and continued in such business until March 2, 1904. On that date he closed the doors of his bank. Thereafter he was adjudged a bankrupt and his property and assets were placed in the hands of a trustee in bankruptcy. On September 12, 1905, he was indicted for the crime of accepting and receiving on deposit on the 1st day of March, 1904, from one Philip Edelkam, the sum of $100, when he knew that he, as well as the bank, was unsafe and insolvent. He was thereafter tried and convicted of the crime as charged, and appeals to this court from an order denying a motion for a new trial, and also from the judgment entered on the verdict.

1. The first question arises upon the sufficiency of the indictment. The defendant was charged with the violation of chapter 219, p. 504, Gen. Laws 1895 (Rev. Laws 1905, § 5118), which provides that ‘Any officer, director, stockholder, cashier, teller, manager, member, messenger, clerk, person, party or agent, of any bank, banking corporation, or association or firm, banking house, savings bank, banking exchange, brokerage deposit company, private bank, or any person, company or corporation, engaged in whole or in part in banking, brokerage, exchange or deposit business in any way; and any person engaged in whole or in part in such business, who shall accept or receive on deposit (in such bank or banking institution as aforesaid), with or without interest, from any person, any money, bank bills or notes, or certificates, or currency, or other notes, checks, bills or drafts, or paper circulating as money, when he knows, or has good reason to know, that such bank, banking corporation, association or firm, banking house, savings bank, banking exchange, brokerage, deposit company, or private bank as aforesaid, is unsafe or insolvent, or that such person is unsafe or insolvent, and any person knowing such insolvency or unsafe condition who shall be accessory to, or permit or connive at the receiving or accepting on deposit therein or thereby, any such deposits as aforesaid, shall be guilty of a felony.’

The indictment charged that ‘Livingston Quackenbush did then and there as a private banker wrongfully and feloniously accept and receive on deposit in said bank from Philip Edelkam certain money, to wit, the sum of one hundred dollars ($100.00), the property of the said Philip Edelkam, good and lawful money and current as such under the laws of the state of Minnesota, and of the value of one hundred dollars ($100.00), a better description of which said money is to the grand jury unknown.’ Appellant contends that the indictment is defective, in that it fails (1) to sufficiently designate the money deposited, (2) to allege that it was current and lawful money of the United States, and (3) to allege a fraudulent intent on the part of the defendant.

(a) Under the liberal rules of pleading which prevail in this state, no indictment is insufficient because of any defect or imperfection in matter of form, which does not tend to the prejudice of the substantial right of the defendant upon the merits. While the statute thus dispenses with certain formalities which were essential under the old system of pleading, it does not dispense with the essential requirements that the charge must be direct and certain as regards the offense and the particular circumstances thereof. State v. Cody, 65 Minn. 121, 67 N. W. 798;State v. Howard, 66 Minn. 309, 68 N. W. 1096,34 L. R. A. 178, 61 Am. St. Rep. 403;State v. Clements, 82 Minn. 448, 85 N. W. 234. It must contain such a substantive description of the subject-matter as will inform the accused of what he is charged with taking, and protect him against being put again in jeopardy for the taking of the same property. State v. Anderson, 25 Minn. 66, 33 Am. Rep. 455;Bromberger v. U. S., 128 Fed. 346, 63 C. C. A. 76. The first objection made to this indictment is that it does not sufficiently describe the money which it is alleged that the defendant accepted. Under the strict rules of criminal pleading, it is possible that the description of the money in this indictment, without an allegation of want of further knowledge on the part of the grand jury, would be insufficient. The earlier authorities generally held that the simple statement of the larceny of so many dollars, or so many dollars in money, without a further description of the money, was insufficient. In England, prior to St. 14 & 15 Vict. c. 110, § 18, passed in 1851, it was necessary to specify the particular species of coin. Rex v. Fry, Russ & R. 482; Rex v. Warshauer, 1 Mood. C. C. 466; Archibald, Crim. Plead. (23d Ed.; 1905) p. 77. Since the enactment of this statute it is sufficient to describe the money as money of a designated value. The former rule has prevailed generally in this country. Brown v. People, 29 Mich. 232;State v. Longbottoms, 11 Humph. (Tenn.) 39; Bishop, New Crim. Prac. vol. 2, § 703. Massachusetts seems to have been the only state to adopt a more liberal rule without reference to statute (Com. v. Gallagher, 16 Gray (Mass.) 240;Com. v. Collins, 138 Mass. 483), although a similar tendency appeared in certain cases in other states. See McKane v. State, 11 Ind. 195;Pyland v. State, 4 Sneed (Tenn.) 357. See particularly the following recent cases: State v. Bartholomew, 69 N. J. Law, 160, 54 Atl. 231;Fay v. State (Tex. Cr. App.) 70 S. W. 744 (‘seventeen dollars in money, each of the value of one dollar’); Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368;Parrent v. State (Tex. Cr. App.) 76 S. W. 474 (‘seven dollars and fifty cents, current money of the United States of America’); Berry v. State (Tex. Cr. App.) 80 S. W. 630;Rowland v. State (Ala.) 37 So. 245;Johnson v. State (Ark.) 83 S. W. 657;Wilson v. State (Tex. Cr. App.) 72 S. W. 862.

Upon the authority of the modern decisions the description of the property contained in this indictment is sufficiently definite. It is certainly sufficient in connection with the rule that the grand jury may, within certain limits, give such a description of the property as the evidence before it will justify and allege that further particulars are to it unknown. Bishop, New Crim. Prac. vol. 1, § 705; Com. v. Sawtelle, 11 Cush. (Mass.) 142;People v. Bogart, 36 Cal. 245. In the early case of State v. Hinckley, 4 Minn. 345 (Gil. 261), this court held bad for uncertainty an indictment for larceny which described the property stolen as ‘divers bank bills amounting in the whole to the sum of five hundred dollars, and of the value of five hundred dollars.’ There was no allegation that a more particular description of the bills was unknown to the jury, and Mr. Justice Atwater, after citing numerous authorities, said: ‘It is not denied but that the certainty required by the authorities may be dispensed with in one case which forms an exception to the rule, and which is allowed for the necessity of the case only, and in no respect militates against the principle above stated. That case is when it is impossible for the jurors to state the facts with legal certainty and when that fact appears in the indictment. This is held as a sufficient excuse for the omission of the proper averments, and is allowed in order to prevent an entire failure of justice. People v. Taylor, 3 Denio, 91;Haskins v. People, 16 N. Y. 347. In this case there is no allegation that a more particular description of the bills was unknown to the jurors; and, indeed, it is not probable that such an allegation could have been truthfully made, as it appears from the case that the bills and coin...