for the protection of the adverse party. In this case, however, it is not manifest that the bond was for the protection of the adverse party, because it is plainly for one who had ceased to have any interest in the litigation. Appellant insists that he should now be permitted to file a new bond, under the provisions of section 1734, Rem. & Bal. Code. If this were an informality or defect in a bond otherwise sufficient, this section would apply; but this bond is so defective that it amounts to no bond or security at all for the respondent Pasco-Columbia River Realty Company, which is the only adverse party. The appeal is therefore dismissed. DUNBAR, C. J., and PARKER and GOSE, JJ., concur. FULLERTON, J. (dissenting). I am of the opinion that section 1734 of the Code was passed for the express purpose of permitting defects such as are shown in the present bond to be corrected. I am compelled to dissent, therefore, from the order of dismissal. (20 Idaho, 639) STATE v. CRAMER. (Supreme Court of Idaho. Nov. 22, 1911.) (Syllabus by the Court.) 1 BANKS AND BANKING (§ 84*)-INSOLVENCY -CRIMINAL RESPONSIBILITY OF OFFICERS. Where the vice president and business manager of a bank, with full knowledge that his banking institution is insolvent and will not be able to meet its obligations and repay its depositors in the ordinary and due course of business, permits or consents to such banking institution continuing to receive deposits through its regular employés, he is criminally liable under the provisions of section 2985, Rev. Codes. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 210, 211; Dec. Dig. 84.*] 2. BANKS AND BANKING (8 84*)-INSOLVENCY -CRIMINAL RESPONSIBILITY OF Officers. Section 2985, Rev. Codes, was enacted for the special purpose of protecting those who place their money on deposit in banking institutions, and the Legislature clearly intended in enacting said section to make all the officers who have knowledge of the condition of the bank responsible for the acts of employés thereof in receiving deposits. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 210, 211; Dec. Dig. § 84.*] 3. BANKS AND BANKING (§ 84*)-INSOLVENCY knew that deposits were being received, though not personally receiving the same, then said deposit in question was received by defendant as an officer of said bank, within the meaning of the statute. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 210, 211; Dec. Dig. § 84.* For other definitions, see Words and Phrases, vol. 7, pp. 5990-5992.1 4 BANKS AND BANKING (§ 84*)- CRIMINAL RESPONSIBILITY OF OFFICERS "INSOLVENT.' The word "insolvent," as used in section 2985, Rev. Codes, and as applied to banking inits assets and property are of such a character stitutions, means that a bank is insolvent when and value or in such a condition that it is unable to meet the demands made upon it in the usual and ordinary course of banking business. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 210, 211; Dec. Dig. i 84.* For other definitions, see Words and Phrases, vol. 4, pp. 3647-3655; vol. 8, p. 7689.] 5. BANKS AND BANKING ( 84*)-CRIMINAL RESPONSIBILITY OF OFFICERS "INSOL VENT. Instructions refused and instructions given by the court with reference to the meaning of the term "insolvent" as used in section 2985 considered, and instructions given by the court approved. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 210, 211; Dec. Dig. § 84.*] 6. CRIMINAL LAW (8 59*)-PARTIES TO OFFENSES-PRINCIPALS AND ACCESSORIES. Section 7697 specifically abrogates all distinctions heretofore existing between accessories and principals. Under the statute of this state an accessory is now prosecuted as a principal. Citing State v. Bland, 9 Idaho, 806, 76 Pac. 780. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 59.*] 7. BANKS AND BANKING (§ 84*)-INSOLVENCY -CRIMINAL RESPONSIBILITY OF OFFICERS. Section 2985 makes an officer of a bank liable as a principal and not as an accessory. Under the evidence in this case, the defendant was properly convicted as a principal, and even if any distinction between principals and ac§cessories were recognized in this state, it would not apply in the case at bar under the provisions of said section 2985. [Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. § 84.*] (Additional Syllabus by Editorial Staff.) 8. WORDS AND PHRASES "BANKER." A "banker" is one who traffics in money, receives and remits money, negotiates bills of exchange, receives money in trust, to be drawn again, or its equivalent, as the owner has occasion to use it. [Ed. Note.-For other definitions, see Words and Phrases, vol. 1, pp. 695-697.] Appeal from District Court, Lincoln County; Edward A. Walters, Judge. Leo Cramer was convicted of receiving a deposit in an insolvent bank while an officer of such bank, and he appeals. Affirmed. Certain instructions offered on behalf of the defendant and refused by the court considered, and instruction given by the court approved, to the effect that if at the time the deposit in question was received said bank was kept open with the knowledge and consent and under the general authority of the defendant as an officer of said bank for the doing of business and the reception of deposits, and said defendant Attys. Gen., for the State. N. M. Ruick, McFadden & Brodhead, Angel & Lamme, and Frank T. Disney, for appellant. D. C. McDougall, Atty. Gen., and J. H. Peterson and O. M. Van Duyn, Asst. the control of a receiver appointed by the court; that said deposit made by said Helen Foster was entered upon the books of said bank in the usual course of business, and that the same was not returned to her, but appeared to her credit upon the books of said bank at the time the receiver was appointed and took charge; that the above-mentioned defendant was and had been for a number of years the active manager and in control of said bank and directed its affairs and had knowledge of the actual condition of said bank during all of the said time and well knew that at the time deposit was received in said bank that said bank was insolvent; that on the date of the reception of said deposit the said defendant was vice president and director of said bank; that the Idaho State Bank named in the information was insolvent on the date of the reception of the deposit of the said Helen Foster, named in the information, and well knew that the cash value of its assets upon said date was not equal to its liabilities, exclusive of capital stock, surplus fund and interest fund; that on the said date the said Idaho State Bank was insolvent and was unable on said date to pay its indebtedness or obligations in the due course of business; that on said date the defendant, Leo Cramer, was in and about the banking room and adjoining rooms in said bank, and well knew that the said bank was open for business and the reception of deposits and was actually receiving deposits in the usual course of business. BRYAN, District Judge. On the 31st day | for business since said date, but that the of February, 1911, an information was filed said bank has been in the hands and under against the defendant and others in the district court in and for Blaine county, the charging part of the information being as follows: "That on the 31st day of August, A. D. 1910, at the city of Hailey, county of Blaine, state of Idaho, the said John J. Plumer, then being an officer, to wit, president of the Idaho State Bank, a corporation organized and then and there existing under the laws of the state of Idaho and as such corporation then and there engaged in a general banking business at the said city of Hailey, and the said Leo Cramer then being an officer, to wit, vice president of said bank, and the said Arthur B. Cutts, then being an officer, to wit, cashier of said bank, and the said Hugh Cramer, then being an officer, to wit, director of said bank, did, as such officers of said bank, at the time and place aforesaid, and before the filing of this information, willfully, unlawfully, feloniously and fraudulently, and with intent on the part of each of said officers to cheat and defraud one Helen Foster, receive a deposit in said bank in the sum of forty dollars, lawful money of the United States of America, of and from the said Helen Foster, which said money was then and there the property of said Helen Foster; and which said Idaho State Bank was insolvent at the time said deposit was received as aforesaid, and each of said officers knew that said bank was insolvent at the time of receiving said deposit." The defendant was tried on said information, and on April 25, 1911, the jury returned a verdict of guilty as charged in said information. From this judgment the defendant has appealed to this court. . This prosecution is founded upon section 2985 of the Rev. Codes of Idaho, which is as follows: "The owners or officers of any bank who shall fraudulently and with intent to cheat and defraud any person, receive any deposit knowing that such bank is insolvent, shall be deemed guilty of a felony, and punished, upon conviction therefor, by a fine not exceeding one thousand dollars, or by imprisonment in the State Penitentiary not exceeding two years, or by both such fine and imprisonment, at the discretion of the court." The transcript shows that upon the trial the state introduced evidence showing the following facts: That on August 31, 1910, the Idaho State Bank was open for business and was transacting business in the usual course; that on said date and while said bank was open for business, one Helen Foster, named in the information, having an account in said bank, deposited therein the sum of $40; that said deposit was received by Arthur B. Cutts, cashier of said Idaho State Bank, and an entry made by him in the pass book of said Helen Foster; that said bank did not open for business on September 1, 1910, and has never been opened At the conclusion of the introduction of evidence counsel for defendant submitted to the court the following instructions: "Instruction No. 2. The jury are instructed that, unless they find from the evidence beyond a reasonable doubt that the defendant, Leo Cramer, himself, actually received the deposit set out in the information, then they must acquit the defendant. Instruction No. 3. The jury are instructed that if it should appear from the evidence that the deposit of money referred to in the information was actually received into the Idaho State Bank by the cashier of the bank, Arthur B. Cutts, or by any employé or officer of said bank other than the defendant, Leo Cramer, then the defendant must be acquitted." The court indorsed the said instructions "Refused and not given," and of its own motion gave the following instruction: "Instruction No. 18. That to authorize a conviction of the defendant it is not essential that he should have personally received the deposit in question or that he should have known that such deposit was made. If you believe from the evidence beyond a reasonable doubt that on the 31st day of August, 1910, at the city of Hailey, county of Blaine, state of Idaho, one Helen Foster deposited $40 in cash in the Idaho State Bank, and that said deposit was actually delivered to Arthur B. Cutts, the cashier of said bank; | said county and state, while said Scranton and if you further believe that said bank State Bank was in an insolvent condition, was on said day open and kept open with and 'when then and there the said appellee the knowledge and consent and under the knew, or had good reason to believe, that general authority of Leo Cramer as an the said Scranton Bank was insolvent.' To officer, to wit, the vice president of said this indictment the appellee entered a plea bank, if you find he was such officer, and of not guilty, and on this issue a jury was other officers of said bank, for the doing of legally drawn and impaneled to try said business and the reception of deposits, and cause, and the state then submitted its case, that said Leo Cramer as such officer knew showing the above facts, together with the that deposits were being received in said following facts; that is: That at the time bank on said day then you may find that of the reception of the deposit charged in said deposit so made by said Helen Foster the indictment against the appellee the apwas received, within the meaning of the pellee was not in the branch bank, nor was statute, by Leo Cramer as such officer of said he in the town of Ocean Springs, but was bank." at said time in Scranton, a place some 14 [1, 3] The ruling of the trial court in re- miles from the place where said deposit was fusing to give instructions Nos. 2 and 3 re- received, going about his ordinary everyday quested by the appellant, and the giving of duties. At the conclusion of the evidence instruction No. 18 by the court upon his own offered for and on behalf of the state, the demotion, will be considered in connection with fendants announced that they had no evithe sufficiency of the evidence. The suf- dence to offer, but filed a motion to exclude ficiency of the evidence and the ruling of the the evidence offered on the part of the state, trial court present the same question, wheth- and requested the court to instruct the jury er "an officer of an incorporated banking to find peremptorily the defendant not guilty institution, with knowledge of its insolvency, of the crime charged. The state then recan be held to have received a deposit where quested the court to instruct the jury in a deposit is actually received by another substance as follows: That even though the officer of said institution." If the evidence jury might believe that the defendant, the in this case is sufficient to support the ver- appellee, was not present at the time of the dict, then the court committed no error in reception of the deposit charged in the inrefusing to give instructions Nos. 2 and 3 dictment, and even though they might beand in giving instruction No. 18. The ques- lieve from the evidence that he did not know tions thus involved have been exhaustively of this specific deposit being made in said discussed in a number of decisions rendered branch bank, yet if the jury further believed by the highest courts of a number of the from the evidence beyond a reasonable doubt states, and there is some conflict in the con- that the defendant was a director in the clusions reached. It is true, however, that Scranton State Bank, and that said branch a number of the decisions are based upon the bank at Ocean Springs on the date laid in particular language of the statute involved, the indictment was kept open through the and we shall attempt in this opinion to re- direction of said appellee and the other diview the leading cases upon both sides of rectors of the bank for the reception of dethe question. A very able discussion of this posits, and further believed from the eviquestion is to be found in the case of State dence beyond a reasonable doubt that the v. Mitchell, 96 Miss. 259, 51 South. 4, 26 L. appellee knew, or had good reason to beR. A. (N. S.) 1072, the facts summarized believe, on said date, that the said bank was ing as follows: "The Scranton State Bank in an insolvent condition, then you should was a banking corporation organized under find the defendant guilty as charged.'" the laws of the state of Mississippi, with branch banks at Moss Point and Ocean Springs, Jackson county, Miss. All of the books of the bank and all of the loans were kept and made at the office of the parent bank in Scranton, and the only functions the branch banks performed were to receive and pay out deposits. Edmund Mitchell, appellee, resided and did business in Scranton, and was at the date of the reception of the deposit, and had been for many years prior thereto, one of the directors of the said Scranton State Bank, and as such director was then and there one of the managing officers of the said bank. As such director, and necessarily one of its managing orficers, appellee was indicted * * together with the other directors and officers of said bank, for receiving a deposit of mon In discussing the case the court said: "The motion to exclude the evidence offered by the state and the peremptory instruction prayed for by the appellee to find the defendant not guilty were granted by the court, and the instruction prayed for by the state was refused, to which actions of the court the state excepted." Upon the trial it was shown that the deposit was actually received by one Louis Lundy, the cashier of the said branch bank at Ocean Springs; "that this defendant at that time was some 14 miles away, at Scranton, where the parent bank was located. It is perfectly clear from the evidence that the said branch bank was utterly insolvent on the day of the reception of this deposit, and had been for some time prior thereto; that the said branch bank was kept open for the reception of deposits managing officers, and that the managing | to have knowingly received or accepted such officers and directors of the said branch deposit." bank knew the bank was insolvent, but did not close the doors of the bank when they knew it had become insolvent, and did not give any instructions to cease the reception of deposits, although said insolvency was well known to them. The main defense pressed by the appellee, this being an appeal by the state to settle the legal question involved in the giving of the peremptory charge for the defendant and the refusal of the charge indicated supra for the state, was that, under this statute, no one of the officers or employés of a bank can be convicted unless the particular employé or officer indicted actually manually received the deposit," etc. The court said: "Exception is taken to so much of this instruction as relates to the action of the defendant in knowingly accepting and retaining the deposit, after full knowledge from whom and under what circumstances it had been made. The argument of defendant is that when the deposit was received and accepted by defendant's son, and entered upon the books of the bank and upon the depositor's book, the whole transaction was concluded. Now, the facts appear to be that the son had for a long time been in the bank, assisting his father; that the father was in the city of Waverly when the son, who had charge of the bank, received this deposit; that it was received on the afternoon of August 15, 1893, and several hours after the son had received a telephone message from his father to close the bank and to take no more deposits; that the father returned to Tripoli the same evening, and then learned that this deposit had been received, contrary to his orders; that said money was put into the assets of the bank; and that defendant never paid or tendered it back to Mohling. Now, when did defendant 'knowing After a very elaborate discussion of the questions involved the appellate court held that the instruction given by the trial court was error, and that under the facts stated the defendant, who had been one of the managing officers of the bank, and who permitted those who were working under his direction to receive deposits, and who had knowledge of the insolvency of the bank, and who took no steps to close the same, nor to prevent the further taking of depos-ly accept and receive' this money as charged its, could be prosecuted for unlawfully receiving deposits. In the case of State v. Eifert, 102 Iowa, 188, 65 N. W. 309, 71 N. W. 248, 38 L. R. A. 485, 63 Am. St. Rep. 433, the court instructed the jury as follows: "In determining whether the defendant received the alleged deposit of C. H. Mohling, you are instructed that it is not necessary that the evidence should show, or that you should find, that the defendant in person received such deposit, nor that he was personally present when it was received from said Mohling, if received at all; it is enough if it was received by the cashier or agent of defendant under his authority. But you are further instructed that even though the defendant instructed Theodore Eifert to close the bank, and refuse to receive or accept further deposits, and that, after such instructions to so refuse deposits, the said Theodore Eifert did accept and receive from said Mohling the deposit in question, if so you find from the evidence, still, if the defendant, with knowledge thereof, accepted and retained as a deposit the amount so received from said Mohling by said Theodore Eifert, and placed among and treated it as a part of the funds or assets of the bank, having full knowledge from what source and under what circumstances and by whom it was received, he will be deemed to have knowingly accepted such sum as a deposit. If, however, such deposit was so received without his authority, and was not accepted by him, if at all, with full knowledge of the manner and circumstances of its being deposited, if at all, then he will not be deemed 119 P.-3 in the indictment? We think he must be said to have done so when he returned home, he had given no directions to stop business and first knew of the fact of its receipt. If and refuse further deposits, then it might be said that he should be concluded by the transaction when the money was in fact received by his son, who had authority to act for him. But, having expressly directed the son to cease business and refuse deposits, he had no reason to suspect or believe that his orders would not be obeyed. It cannot therefore be said that he knowingly received and accepted the deposit when it was handed to his son, and by him accepted, without the father's knowledge, and against his express direction. When, however, he arrived home that evening, he became acquainted with all the facts; he then knew that this deposit had been accepted by the son after he had directed him to take no more deposits; he knew who made the deposit; he knew he was then insolvent, and that he had been before the son had received the deposit; and, knowing all the facts, he did not repudiate the transaction, but retained and accepted the money, at the same time knowing that his bank would never open again. It seems to us that when defendant, after full knowledge of all the facts, on the evening after his return, failed to repudiate the act of his son, and took no steps looking to a return of the deposit to Mohling, he then knowingly received and accepted the deposit. * ** The gist of the offense charged in the prosecution is in knowingly receiving and accepting a deposit, knowing that he was then insolvent. Surely one whose agent, without his knowl edge or authority, and in disobedience of | Banking Company was in a failing or insolhis express instructions, receives and accepts vent condition. 1 Morse on Banks & Bankfor his principal money as a deposit, will not ing, § 178; 1 Whart. Cr. Law, § 247; 2 Whart. by such act be rendered liable criminally for Cr. Law, § 1503; State v. Cadwell et al., 79 knowingly receiving and accepting the money, Iowa, 432 [44 N. W. 700]." but it cannot be doubted that, after coming In the case of State v. Cadwell, 79 Iowa, into possession of all the facts, the principal | 432, 44 N. W. 700, the court said: "At the may so ratify the act heretofore done as to time the deposit in question was received, make it binding upon himself, and the basis of a criminal liability. If the defendant had, on becoming acquainted with what had been done, promptly disavowed the act of his son, and returned the deposit to Mohling, he would not have been guilty, as it could not have been said that he knowingly received and accepted the deposit." one John X. Aleck was cashier of defendant's bank at Logan, and issued the certiticate; and at the time neither of the defendants was present. The certificate, against the objections of the defendants, was admitted in evidence, and the ruling is made a ground of complaint here. A specific ground of complaint in argument is that the defendants were indicted for receiving the deposit, and it is not competent to show on the trial that the money was received by another than the defendants personally. We think no such rule has ever been held by a court of last resort. On the contrary, a general and well-recognized rule is that, if a person does the act constituting the offense, through the agency of another, the act is his, and it is unnecessary to aver the agency in the indictment. It may be charged directly as his act, and proof that he did the act through the agency of another will sustain a conviction. Whart. Crim. Ev. (9th Ed.) §§ 102, 112; Whart. Crim. Law (9th Ed.) § 322; State v. Neal, 7 Fost. (N. H.) 131; Commonwealth v. Nichols, 10 Metc. (Mass.) 259, 43 Am. Dec. 432; Stoughton v. State, 2 Ohio St. 562; Brister v. State, 26 Ala. 107." Continuing, the court said: "It is further said, in this connection, that the defendants are not charged with permitting or conniv- ́ ing at the receiving of the deposit, but with receiving it themselves, and that, under the averments of the indictment, the proofs as to Aleck's receiving the money are not admissible." The rule above announced is conclusive of this question. The defendants are indicted as a firm of bankers, and as such they are charged with receiving the money; and it is entirely immaterial whether they received it in person, or through their cash In the case of Carr v State, 104 Ala. 4, 16 South. 150, the court said: "The evidence showed that defendant and his wife, as partners, carried on a banking business in Colbert county, Ala., under the name and style of "Tuscumbia Banking Company'; that the defendant was the managing and controlling member of said firm; and that one Harrington was the agent of said firm, and acting cashier and bookkeeper thereof, at the time the deposit involved here was made. It was also made to appear that on the day said deposit was made the defendant was away from Tuscumbia, the town where the business was being carried on, and that the deposit was received by said Harrington for the Tuscumbia Banking Company. On these facts it was contended by the defendant, through objections to and motions to exclude testimony and requests for instructions, that he did not receive the deposit alleged in the indictment, and should be acquitted on the uncontroverted evidence; the theory of the defense in this regard being that no other than a direct, personal, manual receipt of deposits can fill the terms of the enactment. There is nothing in this position. The defendant, as a member and manager of the firm called the Tuscumbia Banking Company, carried on the business of banking at Tuscumbia; he thereby, so long as the bank was kept open, invited the public, and Robert J. Abernathy as one of the public, to make de-ier. In law, if they permitted him to do it posits with said firm; whether present or absent personally, he provided means for the acceptance of this invitation, by the employment of Harrington to take possession of deposits tendered in consequence of it for him, and the act of Harrington in so doing is his act as fully in every sense as if he had per-under his direction and authority such auformed it by his own hands; and this whol- thority must have been given after he knew ly regardless of all considerations as to the bank was in failing circumstances. This whether Harrington himself might be held cannot be true. The moment he became in criminal responsibility for his act as agent. aware the bank was in failing circumstances The receipt of the deposit was in the usual the law devolved upon him the duty of recourse of business, which the defendant car- voking the authority of any employé under ried on and kept open for the very purpose, him and subject to his control to receive among others perhaps, of receiving on deposit any further deposit and his failure to prethe funds of other persons, and no matter vent further deposits must be construed as what agencies he employed he is guilty under a continuing authority to receive them, an the statute if he at the time knew, or had assenting thereto, because by one word it for them, they did it themselves. In the case of State v. Sattley, 131 Mo. 464, 33 S. W. 41, the court used the following language: "The defendant argues that to make defendant liable for the reception of the deposit by one of the employés acting |