State v. Wagner

• Decision Date: 23 November 1926
• Docket Number: No. 37674.,37674.
• Citation: 202 Iowa 739,210 N.W. 901
• Parties: STATE v. WAGNER.
• Court: Iowa Supreme Court

202 Iowa 739

210 N.W. 901

STATE

v.WAGNER.

No. 37674.

Supreme Court of Iowa.

Nov. 23, 1926.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

The defendant was tried and convicted of the crime of entering a bank with intent to rob. From a judgment sentencing him to the penitentiary at Ft. Madison for life, he appeals. Affirmed.John L. Sloane and Chas. P. Howard, both of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Vernon R. Seeburger, Co. Atty., and Loy Ladd, Asst. Co. Atty., both of Des Moines, for the State.

STEVENS, J.

The indictment in this case is based upon section 13002 of Code 1924, and charges that--

“The defendant * * * did * * * enter the premises of the Cottage Grove State Bank, a corporation duly organized and authorized to do a general banking business under the laws of this state, * * * with intent to rob.”

The single proposition urged by the defendant for reversal is that a fatal variance between the allegations of the indictment and the proof results from the alleged failure of the state to prove by competent documentary evidence that the Cottage Grove State Bank was a banking corporation duly organized and authorized to do a general banking business under the laws of this state. The argument of counsel in support of this proposition is twofold in character, that is (a) that the legal existence of an incorporated banking institution is an essential element of the crime, and that the same cannot be proven by parol, and (b) that if this is not true, the state, having alleged the corporate capacity of the bank, was compelled to prove it by competent documentary evidence.

[1] The term used by the statute is “a bank or trust company or banking association,” and “any bank or trust company or any banking association.” The words “bank” or “banking institution” have a precise and definite meaning. By universal acceptance a bank is an institution, usually incorporated, which receives the money of others on general deposit, makes loans and discounts, deals in notes, foreign and domestic bills of exchange, and otherwise transacts the general business of banking. Morse on Banks and Banking, § 2; Auten v. U. S. Nat. Bank of N. Y., 174 U. S. 125, 19 S. Ct. 628, 43 L. Ed. 920.

[2] It is the rule in all jurisdictions, so far as we are advised, that, where the legal existence of a corporation is an essential element of the crime charged, it must, like any other essential element of the crime, be proven. The question here is: Does the statute make the legal existence of the bank, which it is charged the accused entered with the intent to rob, an essential element of the crime? The statutes of this state provide for the incorporation of state and savings banks, and recognize as lawful private banking institutions organized prior to the enactment of chapter 236, Laws of the Thirty-Eighth General Assembly (Code, § 9151). The manifest purpose of the Legislature was to provide for the prosecution and punishment of certain offenses against banks, using that term in the usual and ordinary sense of the word, and without reference to previous compliance with the technical requirements of the statute for the organization and incorporation thereof. The offense may be committed as well against a private as an incorporated bank. By the term “any bank” or “any banking association” is not necessarily meant incorporated state and national banks or banking associations, and the statute cannot be so limited. “Any bank” or “any banking association” is any institution doing a general banking business within the universally accepted meaning of the word “bank.”

[3] But it is also argued by counsel for the defendant that, although the application of the statute is not necessarily limited to incorporated banks, and therefore it is unnecessary to allege the corporate capacity thereof in the indictment, nevertheless, the state having charged that the bank entered by the defendant for the purpose of robbery was organized and incorporated and doing a general banking business under the laws of this state, it was incumbent upon it to prove the same.

Section 13749 of the Code provides that--

“No indictment is...