State v. McCarty

Vermilion, .J.

Tbe indictment charged tbe defendant witb tbe crime defined in Sections 9279 and 9280 of tbe Code of 1924. Tbe act so defined by these statutes as a crime, briefly stated, is tbe receiving or accepting as a deposit, any money, or its equivalent, as specified in the statute, by any banker or officer of a bank when the bank is insolvent, and that fact is known to such banker or officer. The indictment is, in part, as follows:

“Tbe said John H. McCarty, on or about tbe 23d day of September, A. H. 1922, in tbe county of Van Burén aforesaid.

“Count 1. That said John H. McCarty, being then and there engaged in banking business as president of Stockport Savings Bank, at Stockport, Van Burén County, Iowa, which said bank was then and there insolvent, tbe said John H. McCarty did then and there, knowing such insolvency, knowingly accept, receive, and permit to be accepted and received on deposit in said bank a deposit made by Smith Bros., of checks amounting to $109.20, at said bank at Stockport, Yan Burén County, Iowa.”

There are four other counts in the indictment, identical in language with Count 1, except that in each a different depositor is named, and the amount deposited is different.

The ground of the demurrer was that the indictment charged more than one offense.

Section 13737, Code of 1924, provides that:

‘1 The indictment must charge but one offense, but it may be charged in different forms, to meet the testimony, and, if it may have been committed in different modes and by different means, may allege the modes and means in the alternative.’'’

The offense in question bears no analogy to a conspiracy, where one or more overt acts may be charged. Section 13902, Code of 1924. While the offense is frequently referred to as "fraudulent banking,” it is not a continuing one, as keeping a nuisance or a house of ill fame, but each act of receiving a deposit under the circumstances specified in the statute constitutes a separate offense.

The indictment charged the defendant with receiving five separate deposits of different amounts from as many different individuals. There is no charge — if such a thing were possible1— that they were received in one transaction. It does not charge one offense as having been committed in different forms or by different means, as is permitted by Section 13737, but five distinct, uncohnected, and unrelated acts and transactions are charged. If the act set out in each count had been charged in a separate indictment, a conviction or acquittal on one indictment would not have been a bar to prosecution under the others.

It seems too plain to require extended discussion that the indictment charged more than one offense, in contravention of Section 13737.

We have been cited to no authority, and our own investigation has disclosed none, where even a suggestion is to be found that, under statutory requirements such as ours, the receipt of separate and distinct deposits from different depositors can be charged in one indictment.

The demurrer was properly sustained, and the judgment is — Affirmed.

De GRAPE, C. J., and SteveNS and Favilue, JJ., concur.