In re Rovnianek , 41 Nev. 141 ( 1917 )

By the Court,

Coleman, J.:

This is an original proceeding in habeas corpus.

The return to the writ shows that the petitioner is held in custody by John T. Burke, as the duly appointed and constituted agent of the State of Pennsylvania, by reason of a certain executive warrant issued by the governor of this state, upon the requisition of the governor of the State of Pennsylvania, based upon three indictments returned against the petitioner by the grand inquest of Allegheny County, Pa.

The point which is urged in behalf of respondent is that each of the indictments charges a crime within the meaning of article 4, section 2, subdivision 2, of the constitution of the United States. Since the three indictments are, in legal effect, substantially the same, we will, in considering the matter, confine ourselves to one of them. Omitting the formal parts it reads:

“ * * * P. V. Rovnianek, * * * * being then and there an officer of a certain private bank known as P. V. Rovnianek & Company Bank, unlawfully did then and there take and receive the sum of $55, lawful money of the government of the United States, from one John Dzurniak as a deposit in said bank, he, the said P. V. Rovnianek then and there knowing that the said P. V. Rovnianek & Company Bank was at the time insolvent, with the intent in him, the said P. V. Rovnianek, to fraudulently embezzle the said sum of $55 lawful money as aforesaid.”

Great reliance is placed by counsel for respondent upon the case of Pierce v. Creecy, 210 U. S. 387, 28 Sup. Ct. 714, 52 L. Ed. 1113, and our attention is especially called to certain language used by the court in that case, which we quote :•

. “There must be objections which reach deeper into the indictment than those which would be good against it in the court where it is pending. We are unable to adopt the test suggested by counsel, that an objection, good if taken on arrest of judgment, would be sufficient to show that the indictment is not a charge of crime. Not to speak of the uncertainty of such a test, in view of the varying practice in the different states, there is nothing in principle or authority which supports it. Of course, such a test would be utterly inapplicable to cases of a charge of crime by affidavit, which was held to be within the constitution. (In the Matter of Strauss, 197 U. S. 324, 25 Sup. Ct. 535, 49 L. Ed. 774.) The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inartificially, charged with crime in the state from which he has fled.”

As we interpret that decision, the court held that the •indictment or other paper setting forth the charge would be deemed insufficient in habeas corpus unless every element of the crime sought to be charged were alleged, for the court says:

“The indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing. * * * ”

1. This is our understanding of the law; that is, if the indictment does not allege every substantial element of the crime in question, no crime is in fact charged, and hence the petitioner should be discharged from the custody of the agent of the State of Pennsylvania. In the matter of Hyatt v. Corkran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657, the court said:

“As was said in Roberts v. Reilly, 116 U. S. 80, 95, 6 Sup. Ct. 291, 29 L. Ed. 544, it must appear to the governor, before he can lawfully comply with the demand for extradition, that the person demanded is substantially charged' with a crime against the laws of the state from whose justice he is alleged to have fled, by an indiptlhent or an affidavit, etc. * * *”

See also, In Re Waterman, 29 Nev. 288, 89 Pac. 291, 11 L. R. A. n. s. 424, 13 Ann. Cas. 926.

Certainly no one - can be substantially charged with a crime unless every element of the crime is stated. If one element of a crime can be omitted from the indictment, then why not every element? If this is done, can a [paper .indorsed “Indictment” be said to be such in tlae sense contemplated? It is clear, we think, that no Spatter how inartistically an indictment may be drawn, It may be good in a habeas corpus proceeding if it charges every element of the offense in question. On the other hand, no matter how artistically it may be drawn, if it omits a single essential element of the offense sought to be stated, it is not such a charge of a crime as will justify the remanding of the person sought to be extradited to the custody of the officer. Taking this view, we must inquire if every element of the crime sought to be charged is contained in the indictments against the petitioner. The statute under which the crime is sought to be charged reads:

“Any banker, broker or officer of any trust or savings institution, national, state or private bank, who shall take and receive money from a depositor with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement, and shall be punished by a fine in double the amount so received, and imprisoned from one to three years in the penitentiary.” (Purdon’s Digest, 13th ed. p. 492, par. 195.)

2. Several reasons are urged as a basis for the contention that the indictments in question do not contain essential elements under the statute; but, as we view the case, we deem it necessary to consider only one of them, and that is, Does the indictment charge that the deposit was accepted by one contemplated by the statute, and acting in the capacity contemplated? It is clear that before one can be guilty of a crime under the statute quoted he must receive a deposit while acting in some capacity designated by the statute. For instance, no one would be guilty of a crime under this statute if, while acting as the president of an insolvent corporation engaged solely in mercantile pursuits, he should accept for the corporation a deposit of money for safe-keeping; nor could an insolvent individual, engaged solely in the grocery business, who might accept a deposit of money for safe-keeping, be guilty of a crime under the statute quoted. The indictment in question negatives the idea that petitioner accepted a deposit while acting as an officer of a banking corporation; hence we are left to determine if the indictment alleges facts sufficient to charge a crime for receiving money as an officer of a private bank. A case which we think is squarely in point is that of Roby v. State, 41 Tex. Cr. R. 152, 51 S. W. 1114. In that case it was said:

“In order to constitute a good indictment * * * it should have alleged that the Tyler Banking Company * * * was a private bank or banking institution, and, if a private bank or partnership, the names of the owners or persons composing the partnership must be alleged. * * * The fact that the statute in question uses the expression ‘private bank or banking institution’ does not change this rule; nor does the fact that the ‘Tyler Banking Company’ did its business under the name of the ‘Tyler Banking Company’ make that mere name a legal entity; nor does it endow it with a personal existence distinct from or independent of the individuals who compose that banking company. In fact, it was simply a firm name, under which the individuals composing it did their banking business. If the individuals were solvent, the Tyler Banking Company was solvent; if they were insolvent, the Tyler Banking Company was insolvent; and, in order to have a good indictment under the peculiar wording of this statute, it was necessary to allege the names of the persons composing the Tyler Banking Company.”

The rule laid down by the language quoted is recognized as the correct one in the case of Commonwealth v. Smith, 11 Lane. Law Rev. Pa. 350. That was a case in which Smith and one Graybille were charged as copart-ners engaged in carrying on a private bank under a firm name. The court said:

“The averment in the indictment follows the language of the act, and is in substantial compliance with the rules of criminal pleading.”

See, also, People v. Doty, 80 N. Y. 225; Boyenton v. Commonwealth, 114 Va. 841, 76 S. E. 945.

It goes without saying that individuals must compose a private banking institution, and the name under which the private bank is operated is no indication as to the identity of the individuals who compose the institution; hence it will be readily seen that it is essential that the names of the persons comprising the private bank should be alleged in the indictment, or there, is an utter failure to allege the existence of a private bank. It is also essential that it should be alleged that the individuals comprising the private bank are insolvent. (Roby v. State, supra; Boyenton v. Commonwealth, supra.)

If some of the very wealthy men of Pittsburg were conducting a private bank under the firm name of Penn Banking Company, and kept the assets of the copart-nership separate and distinct from their individual assets, and the copartnership owed $1,000,000, and held assets of the value of $900,000, which they knew, and while the copartnership was in that financial condition one or all the partners should receive a deposit of money, and thereafter the copartnership should close its doors, if the theory of the respondent is sound,- each of the copartners would be a criminal, even though he were able, ready, and willing to make good any deficiency. We are unable to accede to any such doctrine. This illustration shows the necessity of alleging the names of the individuals who compose the bank, and their insolvency. Because of the failure of indictments in question to do this, no crime is charged.

It is ordered that P. V. Rovnianek be discharged from custody.

Sanders, J., absent on account of sickness.