It is urged, first, that the indictment under which defendant was tried is fatally defective in not averring that defendant knew of his insolvency and in not averring fraudulent intent. “ Where the guilty knowledge is part of the definition of the offense it must be averred, but not otherwise.” Wharton on Criminal Law, Vol. 1, Sec. 297.
The intent is not an element of the crime and need not therefore be averred. The indictment charges the offense in the language of the statute, and under Sec. 408, C. 38, R. S., is sufficient.
We think there is a sufficient compliance with the constitutional requirement in the entitling of the act under which the indictment is drawn. The motion to quash the indictment was properly overruled. On the motion of defendant for change of venue many affidavits were filed pro and con. Some of these amount to no more than the statement of an opinion that the defendant can or can not have a fair and impartial trial. Others, however, affirm and deny the facts alleged in the petition. Sec. 22, C. 146, R. S., clothes the trial court with a discretionary power in passing upon such motions; he “ may grant or deny the petition, as shall appear to be according to the right of the case.” There is nothing in this case to show that the discretion has been abused and hence it is not for this court to interfere.
It was no doubt irregular for the presiding judge to absent himself from the c.ourt room, leaving a member of the bar upon the bench during the progress of the argument to the jury, hut we are not prepared to hold, in the absence of all evidence to show that the defendant was prejudiced thereby, that the ca-'e ought for this irregularity to be reversed. The case is distinguishable from that of Meredith v. The People, 84 Ill. 479. In that case the judge was engaged in the trial of other cases. The member of the bar called to preside at the criminal trial having no judicial powers whatever, there was no presiding judge, the judge of the court being incapable of presiding over the trial of- two cases at the same time. In this case the absence of the judge was but temporary, and there is no pretense that he was so engaged that he could not at any moment resume the bench and pass upon any question which might arise. The calling of a member of the bar to the bench was of no consequence; the judge, though temporarily off the bench, or even out of the court room, was still the presiding judge at the trial.
The ninth error is not well assigned; there is nothing to show that the court refused" to allow defendan M challenge of jurors, or that defendant challenged the panel. It is difficult to tell from the argument, whether the remarks of the judge during the impaneling of the jury are made the ground of exception because they were prejudicial to the defendant, or because they were offensive to counsel ;• but there’is certainly nothing in the record to show that the defendant was not fairly allowed all the challenges he chose to exercise.
It is insisted that there can be no conviction, under the statute, unless there is an entire 'loss of the deposit — viz., all must be lost.
The construction contended for is supported by no authority, is unreasonable, and would render the statute absolutely nugatory.
It would scarcely be insisted that the indictment must state the exact amount of the deposit.
It is unnecessary to prove the value laid in the indictment unless the precise sum forms the essence of the offense, or is stated as a matter of description. Wharton on Criminal Law, Vol. 1, 613.
The mathematical exactness insisted upon by the defendant in this case as to proof of the loss is never required. The extreme case put by counsel w<fuld result in the punishment of the hanker for a very small loss, and yet he would be a wrongdoer to that small extent. But let the extreme case (which it is said is the surest way to reach a correct conclusion) be reversed. Suppose the depositor loses all of his deposit except the one half of ' one per cent., the case presenting all the other elements of guilt, would it still be insisted that there could he no convictiqn because the whole of the deposit was not lost %
This statute is to have a reasonable construction consistent with the rules of the criminal law.
The fourth instruction as to the required proof of value is in conformity with the rules of criminal pleading and evidence and was properly given.
We see no objection to the fifth of people’s instructions. It states' a correct principle as far as it goes. It is not in conflict with defendant’s sixth instruction which goes farther and defines a general depositor, and states the rules of law governing the right of the banker to use the money on such a deposit.
The objection to the ninth instruction raises also the question as to the correctness of the ruling of the court below in refusing and modifying certain of defendant’s instructions. That question is, whether or not it was incumbent on the prosecutor to prove that at the time the deposit was received the defendant knew he was insolvent. As we have already said, knowledge of insolvency is not made an element of the crime by the statute, therefore it was neither necessary to aver it in the indictment, nor prove it on the trial. It will not do to broadly assert that it is absurd to hold a defendantliable when he did not know the existence of facts making the act criminal. Every intelligent lawyer knows that there are many instances in which the law, by statutes, does so deal with individnals for the good of society. The object of this statute is too manifest to be misunderstood. There is no hardship in requiring a banker who is doing a legitimate banking business to know whether he is solvent or insolvent at the time he received his customers’ money on deposit. The uncertainty as to solvency grows out of investments in real estate, or other speculations, not properly belonging to a banking business. "We think the ruling of the circuit court was correct in holding that proof of knowledge of insolvency was not necessary to a conviction, and that there was no error in giving the ninth of people’s instructions and in refusing and modifying those of defendant which sought to impose that burden upon the prosecution. Bishop on Criminal Procedure, Vol. 1, Secs. 522 and 523; Wharton’s Criminal Law, 8th edition, Vol. 1, Sec. 88.
The sixth instruction given on behalf of the people and excepted to by defendant remains to be considered. By it the jury are told that while the allegation of insolvency of the defendant at the time of the receipt of the deposit is a material allegation, yet, if they believe beyond a reasonable doubt from the evidence that he received said deposit within thirty days before his suspension, then the burden of proof is on the defendant to show he was solvent at the time of receiving the deposit. This statute was passed for the purpose of punishing insolvent bankers for receiving deposits, thereby causing loss to the depositor. Insolvency at the time of receiving the deposit is of the essence of the crime, and hence that allegation in the indictment was necessary and material. Sec. 76 of the Criminal Code effectually provides for the punishment of bankers, brokers, etc., who fraudulently convert to their own use money deposited with them. It is therefore manifest that the legislature intended by this act to reach persons assuming to do a banking business and who, through their insolvency, should cause loss to those intrusting money with them on deposit. Conceding then, as must be done, that the allegation of insolvency is material, it is impossible to discover under what rule of evidence the burden of proof as to it, is cast upon the defendant. The instruction would seem to proceed upon the supposition that the statute made the suspension of the bank within thirty days after the deposit, prima faoie evidence of insolvency at the time of receiving the money ; but by reference to the statute it will be seen that there is no such provision. An attempt is made in argument to maintain the correctness of the instruction on the ground that the averment of insolvency is within the rule that where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved; as in indictments for-selling liquor or exercising a trade without a license; but the allegation of insolvency is not a negative averment in this indictment. In an indictment for selling liquor or doing any other act which can only be lawful when authorized by a license, the crime consists in the doing of the act, which may be excused by the license. The averment that the excuse did not at the time of committing the act exist, is material but is negative. Here the act made criminal consists in receiving the deposit by the banker when he is insolvent, and the averment of insolvency is as much an affirmative one as that he received the money.
Had the deposit, in this case, been made more than thirty days prior to the suspension, no greater proof would have been required by the people than under the existing state of facts except as to the fraudulent intent. In either case the insolvency of the banker at the time he received the money must be averred and proved by the people before a conviction can be had.
This instruction erroneously placing the burden of proof on the defendant to prove his solvency, and no other instruction in any way correcting this error, the case must be reversed.
The third instruction given on behalf of the people, though not excepted to, is equally objectionable, and for the same reasons.
We find no error in the rulings of the court in excluding or admitting evidence, nor do we find any fault with the conviction under the evidence, but leave that branch of the case undiscussed, as the case must again be tried.
For the error appearing in the sixth instruction the case is reversed and remanded.
Reversed and remanded.