The law defining the offense charged in this case may be summarized as follows: Every cashier of a bank who fraudulently appropriates any of the credits, evidences of debt or other property of the bank, or who secretes such credits, evidences of debt or other property with a fraudulent intent to appropriate it to any use or purpose not in the due and lawful execution of his trust, is guilty of embezzlement.
The defendant claims apparently that the words “credit” and “overdraft,” as used in the information, import something intangible, such as a status, indebtedness or relation, but that in any event it would not be the subject of embezzlement, because it could not be taken, secreted or destroyed.
Of course, the status, indebtedness or relation between a bank and its customer would not be changed in contemplation of law by the taking, secreting or destroying of any check, draft, order, other paper or record that may cause an overdraft, but as a practical matter such act might destroy the value thereof and the possibility of realizing thereon by re*824moving the evidence of the status, indebtedness or relation from the use or control of the party entitled thereto. And this the law seeks to penalize. A check, draft or order which is honored by a bank when the books of the bank show that the account of the depositor is thereby overdrawn, may create an overdraft. And such check, draft or order, or any written record of such overdraft which amounts to primary evidence thereof, is a “credit,” an “evidence of indebtedness” and “property” subject to embezzlement, within the meaning of the law. The books and papers of a bank, and the writing and other marks thereon and contents thereof which amount to records, are “property,” and the fraudulent changing, secreting or destroying of such records by a cashier may amount to an appropriation of such property to a use or purpose not in the due and lawful execution of Ms trust.
The information filed in tMs ease has been carefully examined, and it appears that the defendant was charged in apt language with the offense of embezzlement, and that the facts alleged in such information were sufficiently specific to give Mm such information as was necessary for Mm to understand and meet the eharge.
Under the indeterminate sentence law of tMs state, as interpreted in In re Setters, 23 Ida. 270, 128 Pac. 1111, any attempt by the trial court to fix a maximum sentence, where such sentence is fixed by law, is surplusage. It is not reversible error, therefore, because the trial court fixed the sentence in tMs case as not less than one year and not more than fourteen years, whereas the statute fixes the maximum penalty as twenty years’ imprisonment.
What appears to be the record in this ease has been examined in order to determine whether or not there was any evidence to sustain the verdict against the defendant, and this court is of the opinion that such record discloses such evidence.
The judgment heretofore rendered herein is affirmed.