Appellant was convicted of having made a false report of the condition of the Declo State Bank on or about the fourth day of May, 1920, to the Commissioner of Commerce and Industry pursuant to a call made for a statement of the condition of said bank on that day and was sentenced to serve not less than six months nor more than two years in the state penitentiary. This appeal is from the judgment.
"Appellant makes ten assignments of error which, for the purpose of argument, he has incorporated into seven propositions.
"As his first proposition appellant urges that the court erred in refusing to grant his motion to quash the information. *Page 602 This matter is not properly before us for the reason that the action of the trial court was not incorporated in a special bill of exceptions as required by C. S., sec. 9010. (State v.Maguire, 31 Idaho 24, 169 P. 175; State v. Moodie, 35 Idaho 574,207 P. 1073; State v. Cosler, 39 Idaho 519, 228 P. 277;State v. Petereit, 39 Idaho 715, 229 P. 747.)
"The second proposition relates to the special plea which appellant entered and which reads as follows:
"`Defendant pleads that he has been acquitted of the charge made in this action by reason of the fact that the Grand Jury for Cassia County, met on April 3rd, 1922, and after investigating this Defendant and the Declo State Bank, did ignore the charge now made against him by information of the Prosecuting Attorney for Cassia County and that filing such information is in violation of the rights of this Defendant as provided for in Section 8 of Article one of the Constitution of the State of Idaho.'
"While this was an attempt to plead a former acquittal of the offense charged, it falls short of the statutory requirements of such a plea. C. S., sec. 8880, subdivision 3, states what must be pleaded in case a defendant relies upon the plea of a former acquittal. It reads as follows:
"` § 8880. Every plea must be oral, and entered upon the minutes of the court in substantially the following form: . . ..
"`3. If he pleads a former conviction or acquittal: "The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of . . . . (naming it) rendered at . . . . (naming the place), on the . . . . day of . . . ."`
"A comparison of this statutory provision with the plea entered shows that in fact appellant entered no plea of former acquittal, for he pleaded, not a judgment of a trial court, but a failure of a grand jury to indict. No action of a grand jury could acquit appellant in the statutory sense. Hence, even if the plea had been entered in proper form according to the requirements of C. S., sec. 8880, the action of the court in excluding the testimony of the prosecuting *Page 603 attorney and the foreman of the grand jury was correct, for their testimony in support of the proceedings before the grand jury as set out by appellant would have no tendency whatever to prove or disprove the issue of former acquittal. Likewise the court committed no error in refusing to give defendant's requested instruction No. 6, which relates to the same special plea of former acquittal.
"Under the third proposition the appellant contends that the court erred in giving instruction No. 10, in which the court charged that it was not necessary for the plaintiff to prove or offer evidence of a specific intent or attempt to deceive. Appellant erroneously contends that this action is brought under the second subdivision of C. S., sec. 5276, because, as he claims, the language of the information follows that part of that section. An extended discussion of this point is rendered unnecessary, due to the holding in the recent case of State v.Waterman, 36 Idaho 259, 210 P. 208. The following language of the court in that case effectually disposes of this question:
"`It will be observed that the clause, "with the attempt to deceive any person or persons authorized to examine into the affairs of any such bank or trust company," is not used in connection with and does not apply to the third division of said section, which is the only part of said section that has reference to the making of such false report or statement of any bank or trust company as is involved in this prosecution. Knowingly making such a false report must have appeared to the legislature as sufficient to constitute a felony, and we have no right to read into this part of the section a specific intent not necessary to the offense and clearly not intended by the legislature to be included.'
"The offense charged in the case at bar is substantially the same as that in the Waterman case. For that reason that case is directly in point and decisive of this question.
"Appellant's fourth proposition assigns as error the refusal of the court to give defendant's requested instruction No. 7. This instruction five times advises each individual juror that he should not join in a verdict of guilty unless *Page 604 he is satisfied beyond reasonable doubt of the guilt of the accused. In State v. Boyles, 34 Idaho 283, 200 P. 125, this court said: 'A juror must realize that his oath as a juror binds him individually, and that instructions addressed to the jury as a whole are addressed to him individually. (State v.Howell, 26 Mont. 3, 66 P. 291.) Instructions calculated to place especial emphasis upon the duty of each individual as a juror to be convinced in his own mind before he agrees to a verdict are unnecessary and generally not to be commended.' The court committed no error in refusing to give this requested instruction. The matter of reasonable doubt is covered sufficiently by the court's instruction No. 5.
"Appellant's fifth proposition involves the instructions requested by him on the subject of discounts, rediscounts, loans, resources and liabilities of the Declo State Bank. The particular instructions requested in this connection by appellant were numbers 4, 12, 14 and 16. The information in this case charged the making of a false report of the condition of the bank, specifying seven particulars in which the report was false, any one of which particulars if supported by competent evidence would have been sufficient to sustain a conviction. As to instructions numbers 4, 12 and 14 it is sufficient to say that they were erroneous in requesting an acquittal of appellant in case some one charge of falsity was found to be untrue. Instruction No. 16 requested by appellant was correctly given as modified.
"The sixth proposition submitted by appellant relates to overdrafts. This was a question of fact properly submitted to the jury and their decision thereon is supported by ample evidence.
"The seventh and final proposition submitted by appellant relates to the question of appellant's knowledge of the falsity of the reports signed by him. On this point we think the court's instructions were eminently fair to appellant. The statute under which the appellant was prosecuted provides for punishment only in case the false report was 'knowingly' *Page 605 made, and in this connection the court gave the following instruction:
"`You are instructed that in law the word "knowingly" means "with knowledge, intentionally," and if you find from all of the evidence that at the time of making the written statement of the condition of the Declo State Bank, as of May 4th, 1920, the defendant honestly believed that said report disclosed the true condition of said bank on said date, it will be your duty to find the defendant not guilty, notwithstanding that evidence may have been introduced to show that said report was in fact not correct.'
"In instructing the jury that it was not necessary for the state to prove a specific attempt or intent on the part of the appellant to deceive the Commissioner of Commerce and Industry the court instructed the jury that they could not legally convict the appellant if they should find that he 'was himself deceived, through no negligence on his part, after an honest effort on his part to discharge his duty.'
"We find no error in the court's refusal to give the instructions requested by appellant. The charge to the jury as a whole fully covered the law of the case and was as fair to appellant as he had any right to expect."