*Supreme*Court—General Term— Third Department.

*November,*1886.

#### PEOPLE v. CLEMENTS.

Officer of Bank, Knowingly Overdrawing Account. Penal Code, Section, 600.

To convict a defendant indicted under section 600 of the Penal Code for knowingly overdrawing his account in the bank of which he was an officer and thereby wrongfully obtaining the money notes or funds of such bank the transaction by which defendant wrongfully obtained the month etc., must be shown.

The mere possession by the bank of a check drawn by defendant on such bank at a time when his account in said bank was overdrawn would presumptively show a credit in favor of the bank on an accounting between the bank and the defendant, but to prove a criminal offense the transaction must be proved by which defendant delivered the check to the bank and wrongfully obtained therefor money. It is not the mere obtaining, it is the *wrongful obtaining*of money, etc., a bank officer which is prohibited by section 600 of the Penal Code and “ wrongful” implies more than the mere want of funds in the bank, at the time of the obtaining.

Appeal by defendant George Clements from a judgment of the Court of Oyer and Terminer of Washington County convicting him under section 600 of the Penal Code which prohibits the overdrawing of his account and the wrongful obtaining of money, etc., thereby of an officer of a bank.

The facts sufficiently appear in the opinion.

*Hughes Horthrup,*for defendant appellant.

*Edgar Hull,*district attorney for the people respondents.

Learned, P. J.

The defendant was indicted under section 600 of the Penal Code, which declares that an officer of any bank who knowingly overdraws his account with such *278bank and thereby wrongfully obtains the money? notes or funds of such bank is guilty of a misdemeanor.

The defendant was cashier of the State Bank of Fort Edward from April, 1871, to the time when the bank closed its business, September 9, 1884.

An action was commenced about that time by the people against the bank and a receiver was appointed. His appointment seems to have been made September 20, and he took possession September 22.

About the first of October Mr. Ostrander, a bookkeeper, was employed by the receiver in the business of settling the affairs of the bank. By direction of -the receiver he wrote up the accounts in the books of the bank as of the date of September 9.

The account of the defendant as thus written up shows no entries from August 7 to September 8. Under date of September 8 there is a credit of $1125. Under date of September 9 a debit of $153.50, another of $690 and another of $85.37; Under date of September 8 a debit of $48.18. Under date of September 9 a credit of $500, also of salary to date $287.49 and a debit of $550.

The book as thus written up showed a balance against him of $2583.96, which has been paid. There is evidence from which it might be found that the defendant agreed to that balance against him. A judgment was recovered against him therefor by the receiver December 20, 1884.

There were vouchers used in looking over the account, which at some subsequent time were delivered to defendant; and it was thought by the witness- that among them was a check for $690, but he had no personal knowledge on the subject.

On the trial, at the request of the prosecution, the defendant’s counsel produced a check, dated July 25, 1884, on the said bank, payable self or bearer, for $690, signed by defendant. And it might perhaps be inferred by the jury that this, check was the voucher for the item of $690 debited to defendant, under date of September 9, although there was no *279evidence on this point except the identity of the amount.

An examination of the boohs of the bank by an accountant shows that on the books, as of the date of September 8, after crediting defendant’s salary that day $1125, the defendant’s account was overdrawn $1894.40; also that on the books, as of date "of July 25, tlje defendant’s account was overdrawn more than $2800, and that it had been overdrawn for a long time prior thereto and during the interval between those -dates.

Now the first count of the indictment, to which the court limited the people, is for defendant’s knowingly overdrawing his account on the 9th day of September, 1884, and thereby obtaining $690 in money. The court held that the precise time named in the indictment was not material, if it was not so distant from the true time as to mislead the defendant, and that within the range between July 25th, the date of the check, and September 9th, the date laid in the indictment, it was not material what time was laid.

The facts above stated constitute in substance the proof given at the trial, winch is material for us to consider.

We may assume then (but only for the purpose of examining an important question), that from and before July 25, 1884, to September 9th of the same year, defendant’s account was overdrawn; that during that time there was no charge against his account of the check of $690 ; that he knew the condition of his account; that on the 9th of September this check of $690, dated July 25th, was-charged to him on his account by direction of the receiver; that judgment was recovered against him for the balance ; that such balance was paid and this check, among other vouchers, was returned to him.

Now taking this statement (which is the strongest view of the case for the prosecution), and assuming that this evidence would justify a finding that the defendant, by the check of $690, overdrew his account, there is no evidence that he thereby wrongfully obtained money, notes or funds of the bank.

The. crime consists principally in such wrongful obtaining' *280of money, as charged in the indictment. And the prosecution must show that the defendant did, by means of that check, wrongfully obtain money. If by that check he obtained money, that is if, by presenting that check, he was paid money, or himself took money from -the bank, that is a fact capable of proof.

The teller, for there was such an officer, could show the payment. Or if the defendant himself took the money, then the reduced amount of the cash on the day when it was taken could be shown. It is true that the mere possession of the check by the bank (assuming it to have been in the bank’s possession) would presumptively show a credit in favor of the bank, on an accounting between the bank and the defendant. But when we come to proving a criminal charge against the defendant something more is needed. The transaction must be shown by which the defendant delivered the check to the bank and obtained therefor money. Suppose, for instance, that on the 25th of July the defendant had been indebted to the bank for any cause, and being so indebted, had given this check as a voucher, then the check would not show that he had obtained money thereby from the bank.

A check is a direction to the bank to pay so much money and to charge the drawer therewith. As between the bank and the drawer the possession of the check is *prima facie*evidence that the bank has paid the money to some one. But when the people charge the criminal offense of obtaining money from the bank, they must show that the accused obtained the money. Not, of course, with his own hands, but to his own benefit. And they must show that such obtaining was by means of a check which overdrew his account.

To illustrate, if one who has no money or credit at a bank, draws a check thereon and obtains money therefor from some third person, he may be guilty of a crime. Penal Code, § 569. But the mere possession of the check by such third person would be no evidence of the crime. Proof would have to be given of the obtaining of the money from such ■ third person by such check.

*281The people insist that the fact (assuming now that it was proved) that the bank once had possession of the check is presumptive evidence on this trial that the defendant, by-means thereof, obtained money from the bank, and that it was for the defendant to disprove this. But we think otherwise. Between the bank and the defendant this was *prima fade*evidence of an indebtedness. But in this criminal action this did not show that by means of the check the defendant obtained money from the bank.

There is still another word in the statute which we have not considered, and that is, “ wrongfully.” The offense is the the “ wrongfully obtaining ” money. There is a meaning in this word, otherwise it would not have been inserted. If we should exclude that word and read the statute, that every officer who himself overdraws his account and thereby obtains the money of the bank is guilty, we should be giving a construction which we do not think was ever intended.

Banks are established to lend money, and it is not illegal to lend money to officers, under certain limitations. Money loaned on an individual note is no better secured than money advanced on a check. Each is a loan, evidenced by the written obligation of the borrower. They say then that if a bank officer of undoubted wealth and responsibility should knowingly overdraw his account, and obtain thereby a few dollars, he would be guilty of a crime under this statute, seems to us incorrect.

It is not the mere obtaining, but the *wrongful*obtaining, which is aimed at. And “wrongful ” implies more than the mere want of funds in the bank, because such want of funds is previously expressed in the statute by the word “ overdraws.” What shall in each case make the obtaining of money wrongful we need not say.

The points we have thus discussed were presented on behalf of the defendant upon the trial in several ways by exceptions and by requests. We .have thought it better to speak of the principles which should govern the case rather than to comment on the exceptions.

*282The views we have stated clearly indicate where we think there was error to the defendant’s prejudice.

There are other points which we have not discussed, but which we do not say were not well taken.

Judgment and commitment reversed; new trial granted.

Bocees and Landón, JJ., concur.