The defendant, Ira B. Jones, Jr., appeals from a conviction in the Court of General Sessions for Lancaster County in July, 1930, on a charge of violating Section 258 of the Criminal Code, the indictment in the case alleging that on July 23, 1929, he knowingly and unlawfully borrowed from the First Bank Trust Company of Lancaster, S.C. of which he was then a director, the sum of $1,171.40, without giving good security therefor and without the written approval of two-thirds of the whole board of directors.
Error is imputed to the trial Judge in admitting in evidence the alleged minute book of the bank and in allowing testimony as to its contents. The State offered this book in evidence through its witness Rion, a public accountant, who had audited the books after the closing, and who testified that the book in question had come into his hands along with the records of the bank, the purpose being to show by the minutes of December 23, 1927, that the defendant on that day had been elected a director of the bank. Defendant's counsel objected to the admission of these minutes on the *Page 424 ground that they were not signed by the secretary or attested by the president and that there was no evidence of their authenticity, but the Court admitted them subject to being stricken out later in the trial, if not sufficiently connected up. No motion to strike out was thereafter made, and even if their admission was error — which we do not concede — an exception based thereon cannot be reviewed here. Armstrongv. Atlantic Coast Line R. Co., 137 S.C. 113, 133 S.E., 826, 48 A.L.R., 482.
In order to prove the alleged unlawful borrowing, the State placed in evidence, through Rion, the ledger sheet showing the defendant's account with the bank, and the witness testified, from this sheet, that on December 23, 1927, defendant had an overdraft of $75.47, and on July 24, 1929, the date of the bank's closing, an overdraft of $1,171.40 — the difference, of course, having been accumulated on various intervening dates. The appellant assigns error to the trial Court in permitting the witness Rion to testify as to the amount of the gross overdraft, in that the defendant was charged in the indictment with having borrowed on a specific date a certain amount of money. This objection cannot be sustained. It is elementary that, unless time is of the essence of the offense, it is not necessary for the State to show that a crime was committed at the exact time laid in the indictment, any time prior to the finding of the true bill being sufficient. State v. Anderson, 59 S.C. 229, 37 S.E., 820;State v. Prater, 59 S.C. 271, 37 S.E., 933.
The appellant also complains of error in the refusal to direct a verdict for him on the ground that there was a material or fatal variance between the proof and the indictment, in that the evidence shows that he did not borrow any money on the 23rd day of July, 1929, or within several days of that date, and in that it failed to show that he borrowed, directly or indirectly, from the bank the amount alleged in the indictment, referring, on the contrary, to an accumulated overdraft, part of which was in existence prior to the time at *Page 425 which the State claimed that he became a director. We see no reason why an unlawful borrowing could not be made through an overdraft. When one draws a check on a bank and the check is presented and paid, the drawer not having sufficient funds on deposit to meet it, the relation of creditor and debtor is established — the bank has made a loan and the drawer has become a borrower. In such case, if the other elements of unlawful borrowing exist, then the statute has been as clearly violated as if a note had been given and the money borrowed regularly. Defendant, having been appointed receiver of the bank after its doors were closed, was in position to procure complete information from its records regarding the state of his account, and could not possibly have been taken by surprise by proof of the overdrafts. Nor was it necessary for the State to prove the borrowing of the entire amount alleged in the indictment, the amount borrowed not being material, and the borrowing of any money whatever without compliance with the statute constituting a misdemeanor. It is to be observed also that when the ledger sheet was offered in evidence defendant's counsel stated that he did not object to the admission of the whole sheet but objected to any entry prior to December 23, 1927, whereupon the Court told the jury that they could consider only the entries made from December 23, 1927, to the date of the bank's suspension.
Complaint is also made of the refusal to direct a verdict for the defendant on the ground that there was no testimony that he was ever notified of the overdraft or requested to pay it, the error being that in order to convict him it was necessary for the State to show that the borrowing was done consciously and knowingly. The exception raising this question is without merit. There was sufficient evidence to go to the jury as to whether or not the borrowing was consciously and knowingly done, and in deciding this question they could consider all the facts and circumstances bearing upon it as brought out in the evidence. *Page 426
The appellant takes the further position that the statute here involved, being a criminal statute, must be strictly construed and, therefore, does not apply to a de facto director but only to a de jure director, and that the State did not prove that he was a legally elected and qualified director. In addition to the evidence of the minutes of December 23, 1927, already referred to, the record shows that defendant signed as a director certain official statements issued by the bank after that date, that ten shares of stock stood on the books in his name at the time the bank was closed — although he testified that he had sold these shares in 1922 — and that in a suit brought by him as receiver of the bank to recover the statutory liability from stockholders, he named himself as a party, alleging that he was the owner of ten shares of stock. This evidence was clearly sufficient to justify the jury in finding either that defendant was a de jure director or that he was a de facto director — it might even be held that he would be estopped, as a matter of law, to deny the legality of his election and tenure. The same evidence, in a proper civil case, would be entirely sufficient to bind him as a director, and we see no reason why the rule governing in civil cases should not be applicable here. Members of the public doing business with a bank may, if their rights are thereby affected, hold de facto directors liable as directors, and obviously the State, in its effort to protect its citizens and the public through enforcement of its statutory regulations, should be entitled to the benefit of the same rule. We think such view is entirely consistent with the general rule that criminal statutes are to be strictly construed.
Finally, error is assigned to the trial Judge in charging the jury that by the plea of not guilty the defendant said, "I didn't do it," since such charge took from the jury the questions as to whether or not the acts done by the defendant were legal and justified and as to whether or not he was "a legal director within the law." When the language complained of is read in connection with the charge as a whole, *Page 427 it is seen at a glance that there was no prejudicial error. All issues in the case were submitted to the jury under proper instructions.
In my opinion, the exceptions should be overruled, and the judgment of the Circuit Court should be affirmed.