State v. Schultz
| Decision Date | 28 December 1927 |
| Docket Number | 6334 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. FRED W. SCHULTZ, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Moody County, SD
File No. 6334—Affirmed
T. M. Bailey, Sioux Falls, SD
Alan Bogue, of Parker, SD
Attorneys for Appellant.
J. D. Coon, C. V. Caldwell, Sioux Falls, SD
Buell F. Jones, Britton, SD
Attorneys for the State.
Opinion filed December 28, 1927
( See 210 NW 50)
Defendant was convicted of embezzlement in the circuit court of Moody county. From the judgment and an order denying a new trial, he appeals.
At the time of the offense alleged, appellant was president and an active officer of the First State Bank of Sioux Falls. The information charges the corporate capacity of the First State Bank, the official relation of defendant to said bank and his active charge and control thereof, and, in substance, that on the 19th of December, 1924, in Minnehaha county, the defendant did then and there willfully, unlawfully, feloniously, and fraudulently appropriate to his own use, and to the use of others to informant unknown, money, the property of the First State Bank, in possession and control of defendant by virtue of his trust as such officer, of the value of $1,026.64, such appropriation not being in the due and lawful execution of his trust, and thereby he committed the crime of embezzlement of the funds of the bank.
Defendant demurred to the information on the grounds that it charges more than one offense and that it does not describe a public offense. The demurrer was overruled, and on the trial defendant objected to the introduction of evidence on the same grounds.
Section 4226, R. C. 1919, defines embezzlement as “the fraudulent appropriation of property by a person to whom it has been intrusted.” Section 4227, R. C. 1919, provides:
“If any person being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust any property which he has in his possession or under his control in virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”
The allegations of the information are sufficient to charge embezzlement under this section, but, because there are two special sections of our Code (section 8991 and section 9062) in the chapter on “Banking,” defendant contends that the information was necessarily drawn under section 8991, and that, so far as embezzlement by bank officers is concerned, that section repeals section 4227. Appellant’s position 'is not tenable unless there is a conflict between such special provision and the general provision above quoted. A bank officer may he prosecuted under the general statute, unless acts therein defined are by special statute not criminal when committed by a bank officer. Section 8991 enumerates certain officers and employees of a bank, and provides that any such officer or employee—
“who embezzles, abstracts, or willfully misapplies or wrongfully diverts to his own use, through the use of accommodation notes or credits, any of the money, funds, credits or property of the bank … shall be deemed guilty of a felony. … ”
It is claimed the embezzlement in this section condemned must be “through the use of accommodation notes, or credits.” Whether this is the proper construction to place upon this provision, we do not decide, for it does not appear that this provision conflicts with the general statute. The other special statute (section 9062) enumerates certain officers and employees of banks and provides that any such officer or employee—
“who embezzles, abstracts or willfully misapplies any of the money, funds, credits or property of the corporation … with intent to injure or defraud the corporation … shall be deemed guilty of a felony. …”
It is contended the embezzlement here prohibited must be “with intent to injure or defraud the corporation.” Whether the intent here described is applicable to embezzlement or only to other acts prohibited is not decided, for this section is not in conflict with the general statute. The word “embezzlement” is used in both special statutes without being defined or limited. The court did not err in holding the information sufficient.
Appellant pleaded not guilty to the information and also former acquittal. The plea of former acquittal is based on the fact that defendant was prosecuted for making a false report and acquitted. Much of the evidence necessary to a conviction in this case was used in the earlier prosecution, but the charge on which appellant is now being tried is distinct from the former charge, and the mere fact that similar evidence is required to prove it does not affect the right to prosecute. There is no merit to this contention, and it will receive no further consideration.
The specific charge upon which embezzlement is predicated in this action arises from the following transaction: Appellant was indebted to one Anastos upon a promissory note (a personal obligation) in the sum of $1,000 and interest, and on or about the 19th of December, 1924, took up or paid this note by giving Anastos a check on the First State Bank drawn on the Schultz & Schultz account therein for $1,026.64. On receipt of the check Anastos surrendered the note, and shortly thereafter presented the check to the First State Bank and received payment thereof in full. At the time the check was drawn and when it was paid there were no funds in the account of Schultz & Schultz (which had been a depositor’s account in the control of the defendant), but it appears that appellant had instructed the tellers to pay the check when presented. It was paid when presented and carried for two days as a cash item; no charge against the account on which it was drawn being made. Then appellant took up the check and substituted therefor a check which he drew on the Bank of Bruce, signed “Schultz & Schultz,” for $1,026.50. This substituted check was charged to the cage of the teller who handles such items and mailed with other remittances to the First National Bank of Minneapolis. The remittance containing this item was destroyed by fire before it reached Minneapolis, and consequently was never credited to the First State Bank. When the remittance to Minneapolis was made, according to the usual custom of the bank, Minneapolis was charged with the account of the several items composing such remittance. When the remittance was destroyed. Minneapolis was credited so as to restore the account, and, pending the time the bank was engaged in getting duplicates of the lost items of the remittance, the charge was carried as a cash item. No duplicate of the lost check of $1,026.50 on the Bank of Bruce was ever obtained, and consequently it was carried for a long time as a cash item; being first carried as a check outstanding in the remittance charge to the First National Bank of Minneapolis until January 6, 1925, then as a cash item until April 16, 1925, when it was lowered $26.50 by a debit slip against the Homestead Holding Company, and thereafter carried as a $1,000 cash item to July 25, 1925. It was then put in an account called “Sundry Banks” for two days, and on July 27 transferred to an account called “Special Sundry Banks,” where it was carried until August 3, 1925. At this time it was taken up and included in two checks aggregating $8,100.71, drawn by appellant, which were never paid. The item was traced through devious courses, which will be unnecessary to further relate, but it will be sufficient to state that the amount of at least $1,000 of the original check to Anastos was never repaid to the bank. It is claimed these transactions constituted embezzlement of the amount of the check by appellant.
Appellant testified in his own behalf and did not deny the transactions as above related, but explained that at the time he drew the $1,026.50 check on the Bank of Bruce he had sufficient funds to pay it, but afterwards withdrew a large part of his account (perhaps accounting for his failure to issue a duplicate). There is no dispute as to the facts covering the specific charge. Those facts are admitted. The defense is that defendant had no criminal intent and that he secured the bank against loss. Intent as an element of the offense will be first considered.
By his check, drawn on an account without funds, appellant caused $1,026.64 of the money of the bank to be used to...
To continue reading
Request your trial