State v. Burke

Rehearing denied October 9, 1928. ON PETITION FOR REHEARING. (270 P. 756.) The defendant petitions this court for a rehearing, upon the ground that the court erred in holding that the indictment charged a crime under the statute; in denying defendant's motion for a directed verdict; in admitting testimony to the effect that the United Meat Company was insolvent; in allowing testimony to be admitted showing the insolvency of the United Meat Company more than twenty days after the check in question had been cashed; in affirming a judgment based upon an inference not deduced from facts proved; in affirming the judgment in the face of the alleged failure of the evidence to disclose the defendant's connection with the crime charged.

The defendant, a bank president, was convicted of the crime of misapplication of its funds, as defined by Or. L., Supp. 1927, page 1403, Section 187. For a copy of the indictment, together with statement of the facts in the case and the statute under which the action is prosecuted, see 126 Or. 651 (269 P. 869).

In sustaining the indictment in our former decision, this court followed the holding in the cases of State v. Kubli, 118 Or. 5 (244 P. 512), and State v. Owen, 119 Or. 15 (244 P. 516), both of which were based upon the violation of the statute involved herein.

It is fundamental that, in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury, and to be fully informed of the nature and cause of the accusation. (Or. Const., Art. I, § 11.) It is the office of an indictment fully to inform the accused of the nature and cause of the accusation that he is called upon to meet. Any indictment which fails in this is defective. An indictment for a statutory offense is sufficient if the crime be charged in the words of the statute or their equivalent. This is a general rule. This rule, however, is limited in application to causes where the words of the statute directly and expressly inform the accused of the nature and cause of the accusation against him. (Or. Const., Art. I, § 11; Evans v. United States, 153 U.S. 584 (38 L. Ed. 830, 14 Sup. Ct. Rep. 934.) Under the terms of Section 1440, Or. L., and Article I, Section 11, of our Bill of Rights, the indictment must charge the commission of the crime with directness and certainty, and every element of which it is composed must be concisely and clearly alleged.

The statute involved herein was adopted from the federal Code.

It is a general rule of construction of statutes that when the law-making power of one state adopts a statute from another state, the construction theretofore given to the act by the court of last resort of the state from which the statute was borrowed becomes a part of the statute. In other words, the statute is adopted, together with its interpretation: Dale v. Marvin,76 Or. 528 (148 P. 1116, 1151, Ann. Cas. 1917C, 557); SchoolDist. No. 45 v. Hallock, 86 Or. 687 (169 P. 130); Studley v. Luse, 89 Or. 338 (173 P. 1182); State v. Stilwell,100 Or. 637 (198 P. 559). In Auld v. Starbard, 89 Or. 284 (173 P. 664), it was held that, where a law, after having been construed by the court of last resort in the state where it was originally enacted, is adopted in Oregon, the interpretation thus given, though not binding upon the courts of this state, affords persuasive argument that it should be followed here. This applies with equal force to laws enacted by the Congress of the United States and adopted by any one of the several states; and, in conformity therewith, we adopt the interpretation placed upon the statute in question by the federal court. For a valuable note on the subject of construction of adopted statutes, see Ann. Cas. 1917B, 651.

But the statute involved in no way affects the law of our state with reference to criminal pleading. As the writer understands it, the following excerpt from "Crimes by National Bank Officers and Agents," Terrell, pages 29, 30, 31, is an accurate statement of the law.

"One of the most prevalent forms of misapplying or abstracting the moneys and funds of a bank by its officers or agents is by overdrawing their accounts. If an officer or agent of a national bank, knowing that he has no money to his credit in the bank, and no right to draw money therefrom, obtains money from the bank to which he has no right by means of an overdraft, with intent to defraud, and converts the same to his own use in fraud of the bank, he commits an offense against Section 5209 Revised Statutes. * * Its intention (the statute) was to punish certain acts which it describes, when such acts are done by one holding the relation to the bank of president, director, cashier, teller, clerk or agent. Among the acts enumerated is the act of misapplying money of the association, and a conversion by an officer of money of the bank, of which he has acquired the possession or control by means of his overdraft, drawn without right, and with intent to defraud, would constitute a misapplication of the money of the association within the meaning of the statute.

"The same is true where an officer of a bank with fraudulent intent discounts paper of or permits an insolvent outsider to overdraw his account in the bank.

"If an officer of a bank knowingly and unlawfully, and with intent to injure or defraud the bank, willfully misapplies the moneys, funds, or credits of the bank, by cashing, discounting and paying for the use and benefit of another, knowing him to be insolvent, out of the moneys, funds, and credits of the bank, any notes, drafts, or bills of exchange, drawn by and upon insolvent persons, firms and companies, knowing them to be insolvent, and knowing such notes, drafts, or bills of exchange to be valueless, he would be guilty of willful misapplication of the bank's moneys, funds and credits."

To like effect see Atwell, Federal Criminal Law Procedure, p. 601.

We have seen that the indictment charges, among other things, that the defendant, feloniously and wilfully, with intent to injure and defraud the Bank of Kenton, misapplied and converted to the use, benefit, gain and advantage of United Meat Company, a corporation, $3,669.10 of the moneys of that bank, knowing that the bank was receiving no consideration therefor. 12 C.J. 525 defines the term "consideration" thus:

"It means something of value in the eye of the law; something in the way of price or compensation, which may be of value to the obligor, or of detriment to the obligee; a benefit to the party promising, or a loss to the person to whom the promise is made; material cause of the contract, without which it will not be effectual or binding; the price or motive of the contract. * *"

We believe that the indictment in the case at bar fulfills every requirement of law.

The contention that the lower court erred in denying defendant's motion for a directed verdict is not sustained by the evidence. There was some competent testimony adduced upon the trial of this cause in support of every essential allegation contained in the indictment, and the court did not err in denying that motion. For a brief summation of the evidence, see our former opinion.

Defendant next assigns error of the court in admitting testimony to the effect that the United Meat Company was insolvent, in the absence of a charge in the indictment to that effect. It is true that the indictment does not use the word "insolvent" in describing the financial condition of the United Meat Company. But it does aver that that company was paid the amount of its check when it had no funds in the bank, and that the money was paid to that company out of the funds of the Bank of Kenton without any consideration therefor. The indictment charges that the president and his co-defendant paid and delivered to the representatives of the United Meat Company more than $3,000 of the bank's funds and credit, without receiving any consideration or value therefor. Under this allegation it was competent to adduce proof, not only of the fact of paying out of the bank's funds, but likewise of the insolvency of the company receiving the funds. The testimony of the meat company's insolvency was relevant as showing that the bank's funds were wilfully, with intent to injure and defraud, paid out by its officers without any consideration, thus establishing that these officers, upon whom was imposed the duty of protecting the funds of that bank, were, in truth, making a criminal misapplication of those funds.

Nor did the court err in admitting testimony showing the insolvency of the United Meat Company twenty days after the check in question had been cashed. The matter of the insolvency of the company on the latter date would go to the weight of the testimony, not to its competency.

We cannot agree with defendant in his contention that the judgment herein is based upon an inference not deduced from facts proved. The evidence shows that the defendant was president, a director, the manager and loan agent of the Bank of Kenton. He was likewise a stockholder and an officer in the United Meat Company, and, for a long period of time, had known that that company had overdrawn its account with the bank in a large amount. According to the bank's by-laws he, as president, had control of the other officials thereof. His great interest in the United Meat Company led him to obligate himself personally in a large sum of money for the liabilities of that company. Motive alone would be insufficient to bring home to him the commission of the offense charged. But, when motive, opportunity, acts of omission and of commission are taken together, we are forced to the conclusion that the jury were justified in determining that the president of the Bank of Kenton was one of the responsible persons in wrecking that bank by the misapplication of its funds.

Another brief in support of defendant's petition for rehearing appears under the names of Oscar Furuset and A.D. Leedy. Among other things, they assert therein that Section 1626, Or. L., as construed and applied in this case, is in conflict with the Fourteenth Amendment to the Constitution of the United States. That section reads:

"After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties."

To similar effect, see excerpts from Or. Const., Art. VII, Section 3c, quoted in State v. Burke, supra.

The section of the Code quoted above has been law in this state from the earliest time, and its meaning has been passed upon by this court again and again.

In the case of Dippold v. Cathlamet Timber Co., 98 Or. 183 (193 P. 909), we wrote the following in reference to the origin and power of our courts:

"The organic and statutory laws of the commonwealth of Oregon created her courts and define their jurisdiction. In fact, no other power could establish the courts of the state, nor could jurisdiction flow from any other source."

The power that created the Supreme Court and conferred upon the defendant herein his right of appeal possessed the power to enact a statute prescribing the duty of the court, as expressed in Section 1626 set out above.

In our original opinion, we refused to reverse the judgment rendered by the lower court because that court committed no errors that affected the substantial rights of the defendant.

It is likewise asserted in the brief just referred to that Article VII, Section 3c, Oregon Constitution, as applied in the case at bar, is violative of the Fourteenth Amendment to the Constitution of the United States, for the reason that it deprives the defendant of a jury trial.

This defendant has had a trial by jury; and, aside from his objection to the indictment, his chief complaint to this court lies in the trial court's denial of his motion to direct a verdict. The amendment assailed by defendant was adopted as a move toward the simplification of court procedure. Does the following language carved from that amendment tend to do away with, or preserve the right to, a trial by jury?

"No fact tried by a jury shall be otherwise reexamined in any court of the state, unless the court can affirmatively say there is no evidence to support the verdict." (Art. VII, § 3c, Or. Const.)

Clearly, the foregoing, as applied in this cause, does not conflict with any provision of the federal Constitution.

The petition for rehearing will be denied.

REHEARING DENIED.