State v. Grandbouche

ON PETITION FOR REHEARING This case is before us at this time upon a petition for rehearing. Appellants, alleged and shown to have been directors of the Citizens State Bank of Upton, located in Weston County, in this state, were accused and convicted in the district court in that county of having wilfully and unlawfully misapplied and converted to their own use the sum of $5000 of the funds and money of said bank, with intent to injure and defraud the bank, in violation of a statute declaring the act so charged to be a felony and prescribing the punishment therefor. Upon appeal to this court, the judgment was affirmed. (230 P. 238.) A question of venue presented at the original hearing and disposed of contrary to the contention of appellants is again presented by the petition for rehearing, which specifies as the sole ground therefor that our conclusion upon that question is erroneous. And it is again argued, as at the original hearing, that the alleged crime was not committed in Weston County, but, if not in Crook County, where the Grandbouche checks upon said bank were executed and delivered to the payee thereof, then in Laramie County, where the draft issued by said bank to pay the checks was paid by the drawee bank.

The facts upon which the question was and must be decided may be briefly restated as follows: For the purpose of part payment for certain stock in another bank then being purchased by defendant Grandbouche, he gave two checks for $2500 each, drawn upon said Citizens State Bank of Upton, payable to one Shields, from whom said stock was being purchased; Grandbouche's account being at the time overdrawn, a condition which continued until the closing of the bank. Said checks were deposited by Shields in a bank at Gillette, in this state, and transmitted by that bank for collection to a bank at Upton other than said Citizens State Bank, known as the "Bank of Upton." Upon presentation of the checks by that bank to said Citizens Bank upon which they were drawn, the assistant cashier thereof, upon instructions from defendant Nelson, who was cashier as well as a director of said bank, issued a draft covering the amount of the two checks upon its correspondent, the Citizens National Bank of Cheyenne, in which the said Citizens Bank of Upton had an account subject to draft, and delivered the said draft to the said Bank of Upton. And that draft, sent by the collecting bank in due course of mail to the drawee bank at Cheyenne, was there paid. Other facts shown upon the trial for the purpose of establishing the criminality of the acts charged need not be here repeated, since the only question for our consideration now is that of venue.

Upon that question, it was said in the original opinion that the fact that the two checks were paid by draft rather than cash was not important, for the funds of the bank were misapplied when the draft, which was subsequently paid, was delivered. It is now, however, earnestly contended that no misapplication then occurred. And it is argued: That no money was then withdrawn from the bank in Weston county; that the draft, which is not mentioned in the information, was not paid by money belonging to the bank issuing it, but by the Cheyenne bank, upon which it was drawn, with money belonging to that bank, whereupon the misapplication, if any, took place only in Laramie County. It is argued also that the acceptance of the draft by the "Bank of Upton" in exchange for the checks was merely an act of clearing between the two Upton banks on that day, with nothing but the fact of the presentation of the checks and the issuance and delivery of the draft to show that the latter was accepted as a payment of the checks; and that until the draft should be and was paid, there could have been no misapplication of the money or funds of the bank issuing it.

The question as to when the acceptance of a check or draft will amount to the payment or extinguishment of an indebtedness as between the parties in the absence of a clear showing that such was their intention at the time is not, to our minds, controlling upon the point now before us. It may be conceded that had payment of the draft been refused and returned to the issuing bank as dishonored paper, the alleged misapplication of funds would not have occurred. For then the checks would have remained unpaid. But that is not the situation here. The draftwas paid, and the amount necessarily charged against the funds or credit of the bank issuing it subject thereto in the bank upon which it was drawn. Among other cases, counsel cite the Missouri case of State v. Mispagel, 106 S.W. 513. The charge in that case was embezzlement of money, and, stating as the well settled rule that, as in larceny, an information for embezzlement must correctly describe the property and the proof must substantially agree therewith, and that, under such rule, money means only what is legal tender, it was held, first, that the charge of the embezzlement of money would not be sustained by proof of the embezzlement of a draft or check; then, upon that ground, it was held that where the defendant, as cashier of a bank, fraudulently drew a draft upon a bank in another county, which was presented and the money collected thereon in that other county by defendant's agent, the latter thereupon causing the amount to be credited to defendant's individual account, the conversion of the money occurred in the county where the draft was paid, and that the crime was committed in that jurisdiction only.

Technical rules controlling a prosecution for embezzlement need not, we think, necessarily apply to a prosecution under our statute aforesaid for an alleged wilful misapplication of money or funds. The statute uses the word "misapply" in addition to "embezzle;" it declares it to be a felony for any director or other named officer or agent of a banking association to "embezzle, abstract or wilfully misapply any of the moneys, funds or credits of such association," with intent to injure or defraud the association, or any other company or person, etc. A distinction is thereby made between embezzlement and a wilful misapplication of funds. U.S. v. Britton, 107 U.S. 655; U.S. v. Heinze,213 U.S. 532. It was said in the Britton case:

"The words ``wilfully misapplied' are, so far as we know, new in statutes creating offenses, and they are not used in describing any offense at common law. They have no settled technical meaning like the word ``embezzle' as used in the statutes, or the words ``steal, take and carry away,' as used at common law."

But the embezzlement case cited does not seem to be particularly in point upon the contention here that the crime was consummated in the county of the Cheyenne bank paying the draft. For that case holds the crime charged therein to have been committed where the accused cashier's checks were paid, in the county of the bank upon which they were drawn and presented for payment and thereupon paid by crediting the account of the accused with the amount thereof. And if the Grandbouche checks were paid when presented to the bank upon which they were drawn in Weston County, then, according to the view of the cited case, the district court in that county would have jurisdiction of the offense, even if the charge was embezzlement. And we remain of the opinion that for the purpose of determining the venue said checks are to be regarded as having been paid by the Upton bank when its draft was issued and delivered in exchange for them when presented for payment; that draft being subsequently paid. The evidence shows that the checks remained in the bank as cash items by direction of the cashier, but they might have been charged against the already overdrawn account of Grandbouche, and, indeed, their practical effect while retained by the bank was to evidence the obligation of Grandbouche to the bank for the amount to the same extent as if they had been charged against his account. In the Missouri case aforesaid the fact in the case at bar, that a draft was given upon another bank for the checks, was not involved.

An embezzlement case more in point here is the Kansas case of State v. Johnson, 199 P. 104. In that case, there had been a conviction in Butler County, Kansas, of one accused of the embezzlement of money; the charge being that the accused had embezzled money of a corporation of which he was president. It appeared that the corporation carried a deposit in its own name in a bank in El Dorado in said county; that checks upon the deposit were drawn from time to time, signed with the name of the corporation by the accused, as president, which were paid by the bank and charged against said deposit; and that in certain instances to which the several counts in the information corresponded, the proceeds, or a part thereof, had been used by the accused for his own purposes. It was contended that the evidence was insufficient to support the conviction because, first, it did not show to whom the money was paid by the bank, or that it was paid to anyone; one or more of the checks having been made elsewhere and ultimately, upon reaching the bank, paid by it and charged to the corporation's account. And, second, that the crime was not shown to have been committed in Butler county. The court said concerning the first contention:

"This was a conversion of the money of the corporation, although no cash was at the time handed out over the counter, upon the reasoning already indicated; and it rendered the defendant guilty of embezzlement irrespective of whether he derived any personal benefit from the transactions."

Upon the contention as to venue the court said:

"Not all of the four checks * * * were given in that (Butler) county. One of them was given in Joplin, Mo. * * * The general rule is that the venue may be laid in the county where the act of appropriation or conversion took place. * * * When the defendant, wherever situated at the time, drew a check against the corporation's deposit in the El Dorado bank, and exchanged it for money or property not for the benefit of the corporation, the presentation of the check at the bank, through whatever hands it had come, resulted in a reduction of the corporation's funds there on deposit by its amount; and this may fairly be regarded as the consummation of the offense of embezzlement such as to fix its venue; the conversion being complete when the bank makes an effective charge against the corporation's account, thereby diminishing its assets that much. This is in effect a conversion of the corporation's money, whether the bank pays the check in cash over the counter to the payee it names, or merely gives credit on its books to the holder from whom it receives it. In a strict technical sense, the depositor has, of course, no actual money in the bank; he has no ownership of any specific currency or specie. But in a practical sense, under ordinary conditions, in the case of a solvent bank operated as a going concern, the depositor may be regarded as owning money to the amount of his deposit, and an agent who has a right to check upon it for his principal's benefit, and wrongfully does so for his own advantage, embezzles the amount of money represented, although the check itself may have left his hands before being presented for payment."

That case, we think, is clearly in line with our view that the conversion in this case and the resulting misapplication of the funds of the Upton bank occurred when the Grandbouche checks were accepted in exchange for the draft. At that moment the bank's assets were diminished by the amount of the draft, and, to the extent of the amount of the checks included in the draft, were misapplied. A conclusion similar to that in the Kansas case, though the question of venue does not seem to have been involved, was stated in a prosecution of a state treasurer for the embezzlement of public funds (Bartley v. State, 53 Nebr, 310, 73 N.W. 744), in which is to be found an exhaustive and instructive discussion, with the citation of numerous authorities. We quote the following extracts from the opinion in that case, which was later approved in a rehearing opinion (55 Nebr. 294).

"The state, at the time of the delivery of the check in question to the bank, had on deposit therein, under the depository law, money in excess of the amount found by the jury to have been embezzled, which constituted the bank the debtor of the state to that amount. * * * To constitute embezzlement, it was not necessary that the defendant himself should have acquired the visible or manual possession of the money. He, by his check, authorized and directed the bank to pay the money called for therein. * * * The bank was thereby empowered to select and transfer the money to the payee, which in contemplation of law it did, although there was no actual handling of a dollar in the entire transaction."

In the rehearing opinion the court described the transaction as follows:

"The several acts and matters elemental, directly or indirectly, of the purposed conversion of the state's money were but means to the end and had reached their final accomplishment when, pursuant to the order of the check, the moneys of the state were paid out or transferred, not for its use or uses, but to perfect, to close and render entirely effectual the misappropriation of the money to the use or uses of the plaintiff in error. * * * It is true there was no physical transfer of cash — money in specie — but the mental processes were all fully existent and active, and were, through regular recognized methods of business procedure, carried out, and the money taken for the individual benefit, and not for the state."

In a case referred to in the original opinion in Bartley v. State, as precisely in point, State v. Krug, 12 Wash. 288, a prosecution for the embezzlement of moneys by a city treasurer, the evidence was said to have disclosed that the defendant, as treasurer, drew a check for $10,000 in favor of another upon a bank having city funds on deposit in excess of that amount; that the payee presented the check and received in payment thereof New York exchange, the bank thereupon charging the amount in its books to the city, thereby lessening its credit to that extent. The jury were instructed that the transaction constituted a payment of money, and that they should construe the treasurer's check merely as the instrumentality by which the money of the city was transferred from the defendant's possession. The Supreme Court sustained that instruction, saying:

"This instruction of the court is based upon the theory that, in contemplation of law at least, this was money. * * * The practical result of the transaction was that, when this check was given * * * and was paid * * * by the New York exchange, and that amount charged to the account of the city, * * * it was just as much a disposition of that $10,000 by the treasurer as though he had gone to the bank and got the money himself, and paid it "to the payee of the check," or had loaned him that amount of money * * *."

That seems also to be directly in point in this case, supporting our view that upon the issuance of the draft in exchange for the checks, the funds of the bank were then misapplied, whether the checks were retained as cash items or charged or to be considered as chargeable against the Grandbouche account in the bank.

Counsel for appellant have called our attention also to the case of Bates v. State, 124 Wis. 612, 103 N.W. 251, where it was decided that an information charging the obtaining of a stated sum of money and property by means of false pretenses charged only the obtaining of money, that the crime would not be established by proof of obtaining merely evidences of money, and, therefore, that where a draft, obtained by false pretenses in Wisconsin, was paid in Iowa, the crime charged was committed in the latter state and not in Wisconsin. But a case more in point here is State v. Smith, 162 Ia. 336, 144 N.W. 32. A defendant was there charged with obtaining money by false pretenses, and it appeared that the person defrauded through false representations contained in a letter sent to him in Nebraska from Polk County, Iowa, drew his check on a bank situated in Cass County, Iowa, mailing it to the accused in said Polk County, whereupon the accused presented it to the bank in that county, and his account in the bank was credited therewith and the money afterwards checked out; the said bank thereafter receiving the money through the clearing house in the city, and the check being finally paid by the bank in Cass County, upon which it was drawn. Upon those facts it was held that the offense was committed in Polk County, where the check had been presented by the accused and his account credited therewith, giving the court in that county jurisdiction. It is stated in the opinion that the point most strongly contended for by the appellant was that the defendant should be held to answer, if at all, in Cass County, where the check was ultimately paid by the bank upon which it was drawn. The contention thus stated seems to approximate the contention of counsel here, that the venue is to be determined by the fact of the payment of the draft in Laramie county. The Iowa court said, disposing of the contention:

"Defendant did actually receive the money from the Des Moines bank (in Polk County) and that moment Thorley (the maker) was bound to pay it. Defendant having actually received the money in Polk County, it seems to us it would be technical to say he did not receive it there. It was his purpose to get the money, and when he got it, Thorley was defrauded."

And the court said further that the fact that defendant would have been liable to the Des Moines bank in case Thorley had no funds in the Cass County bank to meet the check was not material, citing Burton v. U.S., 196 U.S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482.

The Burton case above cited is also opposed to the contention in this case. Burton, a United States Senator, was indicted, tried and convicted in St. Louis, Mo., for, as alleged, receiving there a stated sum of money as compensation for services rendered before the Postoffice Department in a matter wherein the United States was directly interested, in violation of section 5480 of the Revised Statutes of the United States. It was shown upon the trial that the money was received in the form of checks, each of them having been received by the defendant in the city of Washington, and by him there endorsed and deposited with the Riggs National Bank, and that afterwards they were duly paid by the Commonwealth Trust Company at St. Louis, upon which institution they had been drawn; that the amount was in each instance immediately credited by the Riggs National Bank to the account of the defendant with that bank. The court said also that there was no oral or special agreement made between the defendant and the bank at the time when any one of the checks was deposited and credit given for the amount thereof. The Federal District court had charged the jury with reference to the legal effect of the transaction of the deposit of the checks with the bank at Washington substantially as follows: That if it was the intent and understanding of said bank and the accused that the bank should forward the checks in the usual course to St. Louis for payment, and that in doing so, it should act only as the agent of the accused for that purpose, then the final payment at St. Louis would amount in law to a payment at that place of the amount of the check to the accused. But if, on the contrary, it was the understanding and intent that the bank should become the purchaser and owner of the checks, then the payment at St. Louis would amount in law to a payment to the Washington bank and not to the accused, in which event no crime would have been committed by the accused in St. Louis.

The Supreme Court held that the question of venue should not have been submitted to the jury, but that the transaction between the Washington bank and the accused was to be understood as an ordinary case of the transfer or sale of the check by the defendant and its purchase by the bank, and that upon its delivery to the bank, the title thereof passed to it, so that it was not thereafter in any sense the agent of the defendant for the purpose of collecting the amount. The case was reversed, partly upon the ground of lack of jurisdiction by the court in the district where it was tried. The point in the case material here is that the money was held to have been received at Washington and not at St. Louis, where the check was payable and ultimately paid. The court in its discussion conceded that the defendant would be liable to the Washington bank upon his endorsement of the check, but did not regard that as a matter controlling the question of venue, but said, notwithstanding that liability, that the money was received at Washington.

The determinative question there was, — where was the money received; for the charge was and the statute prohibited the receiving of compensation. Here the question is the misapplication of money or funds. The bank in Weston County had left in its possession, upon delivery of its draft, the Grandbouche checks of no apparent value, and, indeed, of no value, as we think the evidence disclosed. There were no funds to the maker's credit to pay them, nor sufficient cash on hand in the bank to pay them, and it seems to us that it would be quite unreasonable to hold that the money or funds of the bank were not then and at that place misapplied, within the meaning of the statute. It has been expressly held that where the president of a bank, by reason of his official position with it, embezzles its funds by drawing them by checks issued in another county, the venue of the crime is not improperly laid in the county in which the bank is situated. Weathers v. State, 24 Ga. App. 363,100 S.E. 768. And to the same effect is the earlier case decided by the same court. Mangham v. State, 11 Ga. App. 427, 75 S.E. 512.

It is said in Lear v. U.S., 147 Fed. 349, that the word "misapply" does not necessarily mean that the officer in charge should have physical possession of the funds misapplied. The misapplication in that case was alleged to have occurred as follows: That the said accused, president of a named bank, did pay and cause to be paid to himself upon and pursuant to the direction and authority contained in a certain draft of the said banking association drawn upon a stated bank in Philadelphia to the order of the bank of which the accused was president, and from and out of the means, funds and credits of the latter. And the court said that the transaction "was a handing over of the bank's funds, by the cashier, on the demand of his superior officer, whom he knew at that time to be indebted to the bank, in a stated sum, part of which were overdrafts." That is to say, as we understand, that the issuing of the draft by the cashier upon the direction of the accused as president then and there amounted to a handing over of the funds of the bank to the amount of the draft.

We have not at any time entertained a doubt as to the question here considered, or that it was correctly decided as stated in the original opinion, but we have given careful consideration to the able brief in support of the application for rehearing and have made a further examination of the question, as herein disclosed. We feel satisfied that a rehearing could not result in a different conclusion, and are constrained to deny the application therefor.

Rehearing Denied.

TIDBALL, District Judge, and RINER, District Judge (sitting in place of Justices Blume and Kimball), concur.