(dissenting). I. The statute, Paragraphs 7 and 8 of Section 5289, Code Supplement, 1913, permits amendment “as to matters of form * * * in the name of any person or in the description of any person or thing, or in the allegations concerning the ownership * *” But it still prohibits charging “a different crime or different degree of crime.” Without this statute permission, no change could be made. It follows none but such as are expressly permitted can be made. The amendment here changes the allegation of the original that Adam Kiefer, W. H. Kiefer, and John Kiefer committed the crime charged, to one that Adam Kiefer alone did. The statute does not authorize such changes. It is no answer that such change was not authorized by statute nor by the court, and is, therefore, surplusage. This reasoning would make it immaterial that the act was unauthorized. Indeed, under it, the more the change lacked authority, the less effective would complaint of the change be. As to lack of permission by the court, it suffices to say that the State was permitted to try defendant on the changed indictment.
II. The statute intends to punish, and the indictment charges, fraudulent banking. It is proved that whatever *342was done was by a partnership composed of named individuals. There is evidence which tends to show the partnership received this deposit when it was insolvent. There is no evidence that either of the members were or are in-, solvent. It is presumed they were and are solvent. 1 am of opinion that, therefore, Adam Kiefer, one partner, may not rightfully be convicted. The failure to show the insolvency of the partners malíes the same situation as if it were proved that they were solvent. If that be so, how was the depositor defrauded, even if the artificial entity, the partnership, was insolvent? The partners are liable for the deposit. If the liability differ at all, it is that possibly the partners cannot be made to pay unless the partnership fails to. I doubt whether this much is so, and think the partners and the partnership could have been sued jointly, or the partners sued and collected from first. Code Section 3468 provides that actions may be brought by and against a partnership as such,, or against it and all or any of the members thereof, and a judgment against the firm as such may be enforced against the partnership property or that of such members as have appeared or been served with notice. A new action may be brought against the members not made parties, on the original cause of action. We held in Hamsmith v. Espy, 13 Iowa 439, that, where a judgment on a partnership debt is recovered against individual members of a firm, the sale of individual property thereunder will not be invalid, although an individual creditor might, by proceedings in equity, in a proper case, compel a resort to partnership property. According to Schoonover v. Osborne, 108 Iowa 453, at 454, one partner who buys out the other is thereafter' to be dealt with as having all the rights and obligations of the partnership.
It is no answer that the statute contemplates prompt payment of the depositor, and that recourse to solvent partners might mean delay. A solvent partnership might delay *343payment by neglect, arbitrary refusal to pay, or by captious litigation. But thus to delay would no't constitute the crime here charged. To me it seems inconceivable that one partner can be guilty of violating the statute involved, when reimbursement of the deposit can surely be obtained. The argument that, on receipt of a deposit, there is an implied representation that it will be repaid on demand, does not impress me. One who gives a demand note for money received makes like representation. It would hardly be claimed .that, on a charge that said note was accepted on a representation that the payor partnership was able to pay it, a conviction might be had, without evidence that the partners were unable to pay. I think the majority overlooks that a fraudulent intent is essential, and that, though the receiver does not draw nice distinctions between insolvency and bank insolvency, he would have no fraudulent intent if he believed, and it was the fact, that the depositor could not lose. ' Since this was written, the majority has made a change, in effect that evidence tending to show that the partners were solvent might be received, if offered in defense. This impels me to add: First, that this is inconsistent with what remains, — i. e., that such evidence is irrelevant and immaterial; and second, and as said already, there was such proffered here. For it is an inference of fact that the partners were solvent. This is the equal of testimony that they are solvent.
III. While it is not done scientifically, the point is raised. It is assigned to be error to overrule defendant’s motion for a directed verdict, his motion for a new trial, and his motion in arrest of judgment. The motion to direct verdict asserts there is insufficient competent evidence to warrant conviction; that the record as a whole is insufficient to base conviction; and that, if verdict of guilty be rendered, the court would be compelled to set same aside, as without support in the competent evidence. The motion *344for a new trial claims the competent evidence offered was insufficient to convict defendant of any crime. The motion in árrest declares the defendant is charged with a crime unknown to the laws of the state, and that, upon the whole record, no legal judgment can be pi'onounced. The argument squarely makes the point that the partners also must be proven to be bankrupts.
For the reasons stated, it is my opinion that the judgment of conviction should be set aside, and the case remanded for a new trial.
I am authorized to say that Mr. Justice Weaver joins in this dissent.'