I dissent from the ruling on bill No. 5. The witness Pasquier was an expert accountant and, while it is true, as stated in the majority opinion, that such a witness may give in evidence the result of his examination of books and accounts in cases like this, yet he should not, I think, have been permitted to state to the jury that in his opinion certain book entries were "false entries," as that term is used in the statute under which this defendant was prosecuted. The term "false entry," as used in the statute, may or may not imply an entry made dishonestly and with intent to deceive. Webster says that the word "false" means "given to deceit, dishonest, treacherous, perfidious, assumed or designed to deceive, intentionally or wilfully untrue, *Page 234 hypocritical." That is the sense in which the word "false" is used in the statute and that is the sense in which it is ordinarily used by laymen. It is sometimes used as "not according with truth or reality, not true, erroneous, not genuine or real." Webster.
An entry in the books of a bank made by its president, cashier, or bookkeeper might be erroneous, not a true entry, and still not be a "false entry" as that term is used in the statute. An incorrect, erroneous entry might be unintentionally, honestly made, and carried forward in a book and from book to book. The making of such an entry is not culpable. The statute says that if any officer or employee of a bank shall knowingly make "false entries" in any of the books or records of the bank for the purpose of deceiving the examiner of state banks or the board of directors or the public, he shall be guilty of a felony. What that means is that the entry, to constitute a felony, must not only be false to the knowledge of the one who makes it, but must be made with intent to deceive.
In Ratterman v. Ingalls, 48 Ohio St. 468, 28 N.E. 168, it was held that the word "`false,' in jurisprudence, usually imports something more than the vernacular sense of `erroneous' or `untrue.' The word is often used to characterize a wrongful or criminal act, such as involves an error or untruth intentionally or knowingly put forward. A thing is called `false' when it is done or made with knowledge, actual or constructive, that it is untrue or illegal, or is said to be done falsely when the meaning is that the party is in fault for its error."
"Falsely," as used in an instruction stating that it is for the jury to determine whether *Page 235 defendant falsely represented certain facts, will be construed to mean something more than "mistakenly" or "untruly" and cannot be construed otherwise than to mean something designedly untrue or deceitful, and as involving an intention to precipitate some fraud. State v. Brady, 100 Iowa, 191, 69 N.W. 290, 36 L.R.A. 693, 62 Am. St. Rep. 560.
"False account," as used in the revised statutes of New Hampshire, was construed in Putnam v. Osgood, 51 N.H. 192, to mean an intentionally false account and not an account which is incorrect through mistake. "It is quite obvious that the term `false account' may be construed to include an account which is false, known to be untrue; and this, we think, is the more common and ordinary meaning of the term." Quotations and citations from Words and Phrases, First Series, vol. 3, pages 2655 et seq.
The author of the majority opinion quotes from the same work at page 2656 the definition of "false entry" as follows (omitting citations):
"`A false entry in the books or reports of a bank' * * * is an entry that is knowingly and intentionally false when made."
The witness Pasquier was permitted to state that in his opinion certain entries in the books and records of the bank were "false entries." The jurors knew, of course, that the defendant was being prosecuted for making such entries in the books and records of the bank as constituted a felony under the statute, that is, entries, which were false to his knowledge and made with intent to deceive; and they knew, of course, that what the witness meant when he stated that in his opinion those entries were "false entries," was that in *Page 236 his opinion they were false to the knowledge of the accused and made by him with intent to deceive.
The defendant was being prosecuted for making "false entries" in the books of the bank and the witness was speaking of "false entries." The jurors understood, of course, that if defendant had made "false entries" in the books of the bank, he was guilty. So that the statement of the witness that in his opinion the entries were "false entries" was tantamount to a statement that in his opinion the defendant was guilty.
This witness was not a layman, but an expert accountant, and was supposed to know, if any one did, whether the entries were false or not. Naturally his opinion carried great weight with the jurors because he knew more about such technical matters than they did. To permit him to express an opinion that the defendant was guilty, and that is virtually what he did, was under the circumstances about as prejudicial to defendant's case as if a like opinion had been expressed to the jurors by the judge himself.
It was not within the province of the witness to express an opinion concerning the sole issue in the case, which was whether the entries in the books were false within the meaning of the statute. The witness should have been permitted to state all the facts disclosed by the books, and it was for the jurors to say, after learning the facts from the witness, whether the entries were "false" as that term is used in the law and was used in the indictment. It is the exclusive province of the jury in all criminal trials to pass upon the guilt or innocence of the defendant. I think the opinion expressed by this witness *Page 237 was highly prejudicial to the defendant and that the verdict and sentence should be set aside.