State v. Eifert

¶1Supplemental Opinion on Re-hearing.

¶2Former decision affirmed.

¶3— A re-hearing was granted in this case that we might, with the aid of further arguments, reconsider the objections urged by appellant to the eighth paragraph of the charge to the jury, or in other words, that we might review the conclusion announced in the third paragraph of the opinion. We have not at any time doubted the correctness of the opinion in other respects, and therefore limit our present inquiry to this one subject. In said instruction the jury was told, in effect, that it was not necessary that they find that the defendant had in person received-the deposit, nor that he was personally present when it was received; that it was enough if it was received by the cashier or agent of the defendant under his authority; that though the defendant instructed his cashier to close the bank, and refused to receive further deposits; and that thereafter the cashier did *200accept and receive this deposit. “Still, if the defendant, with knowledge thereof, accepted and retained as a deposit the amount so received from said Mohling, by said Theodore Eifert, and placed among and treated it as a part of the funds or assets of the bank, having full knowledge from what source and under what circumstances and by whom it was received, he will be deemed to have knowingly accepted such sum as a deposit.”

¶47 8 Appellant’s first complaint in his argument on re-hearing is that there is no evidence to warrant that part of the instruction to the effect that it was not necessary that the defendant should have received the deposit in person, or have been personally present, nor that it was enough if it was received under his authority. It is true there was no evidence to which this part of the'instruction, taken alone, could apply; but it was a correct statement of the law, and aided'to make plain that which followed in the instruction. Appellant insists that in what follows in said instruction the court attempts to apply to this criminal charge the principle of ratification. He contends that a .criminal act cannot be ratified, and cites in support 1 Am. & Eng. Enc. Law, 480, and the cases therein referred to. The instruction does not submit the question of defendant’s accepting and receiving the deposit by a ratification of what the cashier had done. It rests the question of accepting and receiving upon whether the defendant retained the deposit, and placed and treated it as part of the assets of the bank, with full knowledge of the circumstances under which it had been received by the cashier. The doctrine of ratification is not invoked to charge the defendant with having accepted and received the deposit as of the time it came into the hands of the cashier. The case was submitted upon the inquiry as *201to whether the defendant accepted and received the deposit after being informed of the circumstances under which it had come into the hands of the cashier. In the instruction under consideration, the jury was told that if the defendant, with knowledge of the circumstances under which the deposit was received, accepted and retained it as a deposit, and placed it among and treated it as a part of the assets of the bank, “he will be deemed to have knowingly accepted such sum as a deposit.” In the former opinion we said: “It seems to us that when defendant, after full knowledge of all the facts, on the evening after his return, failed to repudiate the act of his son, and took no steps looking to the return of the deposit to Mr. Mohling, he then knowingly received and accepted the deposit.”

¶59 10 Appellant contends that, if the defendant and his bank were insolvent at the time the money was received, Mr. Mohling could pursue it as a trust fund in the hands of either the defendant or his assignee, and recover it in kind, or its equivalent, if it had been so mixed with other money as to destroy its identity. He cites Wasson v. Hawkins, 59 Fed Rep. 233, and American Trust & Savings Bank v. Gueder & Paesehke Manufacturing Co. (Ind. Sup.) 37 N. E. Rep. 227. Whether such is the law we need not determine, for, if it be, it would apply with equal force if the deposit had been received by the defendant in person, or by his authority. If it be conceded that Mr. Mohling had the right to pursue that deposit as a trust fund, it does not follow that defendant did not knowingly receive and accept it. He not only failed to repudiate the act of his son in receiving the deposit, and failed to return it, but, within four days after its receipt, included that money in a general assignment made by him for the benefit of his creditors. We have *202re-examined the case with care, and reach'the conclusion that the former'opinion is correct, and it is therefore adhered to. — Aeeibmed.

¶6(dissenting). — The defendant was accused and convicted of the crime of fraudulent banking, in that, when insolvent and knowing that fact, he “did knowingly accept and receive from C. H. Mohling a deposit in his banking and deposit business, the sum of one hundred dollars.” The court properly charged the jury that it was not necessary to consti-. tute the offense charged that the deposit should have been received by the defendant in person, but that it was sufficient if the deposit was received under his authority by his cashier or agent. State v. Cadwell, 79 Iowa, 435 (44 N. W. Rep. 700). But the court also charged the jury that, if-the deposit was received by his agent in violation of his authority, “still if the defendant, with knowledge thereof, accepted and retained as a deposit the amount so received, * … and placed among and treated it as a part of the funds or assets of the bank, … he will be deemed to have knowingly accepted such sum as a deposit.” It seems to me that this portion of the charge, as applied to undisputed facts in the case, was erroneous, and that the evidence is not sufficient to sustain the verdict. The law does not forbid' an insolvent banker to retain a deposit properly received, but to accept or receive it; and whether the defendant is guilty does not depend merely upon his having retained the deposit in question, but whether, by his acts, he accepted or received it, within the meaning of chapter 153 of the Acts of the Eighteenth General Assembly, after he knew that it had been received by his agent in violation of his instructions. It is the general rule that, to constitute a crime, there must be a wrongful act, done with a criminal intent, or the *203intentional doing of an act from which a criminal intent is conclusively presumed. 1 McClain, Or. Law, sections 112,128; 1 Bishop, Cr. Law, section 864, et seq. Wrongful acts, which create a civil liability, may fall short of crime, and the inquiry in this case is not whether the facts show that the defendant is civilly liable for the deposit in question, but whether his acts amounted to the accepting or receiving of the deposit, within the meaning of the statute. He is not charged with having permitted or connived at the accepting or receiving of the money.

¶7The evidence shows, without conflict, the following facts: The defendant went from Tripoli to Waverly, in the morning of August 15, 1893. Before going, he talked with his son Theodore, who was left in charge of the bank, and stated that he was going to Waverly, “to look the ground over,” and that, if things did not look very favorable, he would send a telephone message to the son to stop business, and not receive any more deposits. The defendant sent a message to that effect before 2 o’clock of that day. It was received by the son, but he did not obey it, because he thought his father took too gloomy a view of the situation, and received several deposits, including the one in question, after he received the message, and before 4 o’clock, when he closed the bank. The defendant returned at night, and was informed by his son that he had closed the bank, but that he had kept it open until 4 o’clock, and had received deposits, including the one made by Mohling. The defendant was dissatisfied that his order had not been obeyed, but did nothing with the money received. There is no evidence whatever, that he placed it among the assets of the bank. It had been received and placed with the funds of the bank by his son. There is no pretense that it had been kept apart from the money previously in the bank, nor that it could have been *204identified and treated as a special deposit. It is not shown that the defendant took actual possession of it, but it seems to have remained where the son placed it until the assignment for the benefit of creditors was made. The bank wTas never opened after it was closed by the son, as stated. When he received the deposit of Mohling, the amount was entered in the pass book of the latter, and it is not shown that any other entry was made in any book until after the assignee had taken possession of the bank. The son then asked of the assignee the privilege of posting in the books the work done on the fifteenth of August. Mohling never made any demand for the'return of the money he had deposited, and it does not appear that it was ever suggested to the defendant by any one that the deposit should be refunded before he made the assignment for the benefit of creditors. The entire amount due Mohling, including the deposit in question, was five hundred and forty-eight dollars and forty-four cents; and it is shown that, before the assignment was completed, the defendant endeavored to have Mohling commence suit, aided by attachment, to recover the amount due him, and represented that, if he would do so, he would obtain all of it. The total amount due Mohling, including the deposit in question, was set out in the schedule of claims attached to the assignment, but the defendant did not prepare the schedule. That was done by his attorney and his son, and he does not appear to have given the fact that the Mohling claim included the deposit in question any thought, but, if he had purposely included it, that fact would not have shown that he had accepted or received the money. That had been done, in violation of his instructions, by his son, and the money so mingled with the funds of the bank that it could not be identified. The unauthorized act of the son was effectual to create between the defendant and Mohling the *205relation of debtor and creditor, Independent District of Boyer v. King, 80 Iowa, 500 (45 N. W. Rep. 908), because it was tbe right of Mohling, in the absence of actual knowledge of the limitation upon the power of the son, to rely upon the apparent authority with which the defendant had clothed him to receive the deposit. The relation stated having been • established, it could not have been changed, and the money given the character of a special deposit, without the consent of Mohling. It is not shown that the defendant attached to his assignment an inventory of. his assets, and the record is entirely barren of evidence to show that he had any intent in making the assignment to appropriate to his own use any money or other property which belonged to Mohling, or to alter their relation in any manner. The assignee acquired only the right of the defendant in the property assigned. Meyer v. Evans, 66 Iowa, 183 (23 N. W. Rep. 386); Independent District of Boyer v. King, 80 Iowa, 501 (45 N. W. Rep. 908). If Mohling had any special interest in or lien upon the property assigned while it was in the hands of the defendant, that interest or lien could have been enforced against the assignee. See Bruner v. Bank (Tenn. Sup.) 34 L. R. A. 532, and notes; s. c. 37 S. W. Rep. 286. It is my opinion that the evidence is sufficient to show a civil liability only; that it wholly fails to show that the defendant accepted or received the deposit in question within the meaning of the statute; and that it does not show any act on his part done with a wrongful intent, or from which a wrongful intent should be presumed. Therefore, I think the judgment of the district court should be reversed, and that the defendant should be awarded a new trial.