State v. Grandbouche

*92 Tidball, District Judge. The appellants Grandbouehe and Nelson, hereinafter referred to as defendants, were convicted in the District Court of Weston County of violating Section 7136, Wyoming-Compiled Statutes of 1920, and were sentenced to a term in the penitentiary, and have appealed from that judgment to this court. The information under which defendants were convicted reads as follows: INFORMATION. Comes now David A. Fakler, County and Prosecuting Attorney of Weston County, in the State of Wyoming, and *93 in tlie name and by the authority of the State of Wyoming, informs the Court and gives the Court to understand that A. C. Grandbouehe and Everett Nelson, both of the County aforesaid, on the 18th day of October in the year of our Lord one thousand nine hundred and twenty-one, at the said Weston County in the State of Wyoming, did then and there at the time and place aforesaid, wilfully and unlawfully misapply of the funds and money the property of the Citizens State Bank of Upton, the sum of Five thousand Dollars in lawful money of the United States, and did, then and there, convert the said sum of money to their own use with intent then and there to wilfully and unlawfully injure and defraud the said Citizens State Bank of Upton, aforesaid, as follows, to-wit: That on the 18th day of October, in the year of our Lord one thousand nine hundred and twenty-one, and prior thereto, the Citizens State Bank of Upton, was a banking corporation, duly organized and existing under and by virtue of the laws of the State of Wyoming, and as such then and there engaged in transacting a general banking business at Upton, Weston County, Wyoming, and that the said Everett Nelson and the said A. C. Grandbouehe were each then and there, and had been for sometime prior thereto, directors of the bank aforesaid; that on the 15th day of October, in the year of our Lord one thousand nine hundred and twenty-one, the said A. C. Grandbouehe then and there, well knowing that he had no money or funds on deposit, or subject to check, in the bank aforesaid, to pay any cheek that he might draw in any sum on said bank, knowingly, wilfully and unlawfully drew two certain checks on the Bank aforesaid dated on that day for the sum of Twenty-five Hundred Dollars, each, payable to one H. B. Shields, and then and there uttered the said checks by delivering the same to the said H. B. Shields in payment to the said H. B. Shields of some obligation to your informant unknown ; that thereafter, and on the 18th day of October, in the year of our Lord one thousand nine hundred and twen *94 ty-one, after the said checks had been so drawn and uttered as aforesaid by the said A. C. Grandbonche aforesaid, the said checks were presented for payment by the Bank of Upton to the said Citizens State Bank of Upton, and when so presented, there was no money or funds on deposit in said Citizens State Bank of Upton to the credit of the said A. C. Grandbouche aforesaid subject to cheek or at all with which to meet or pay the said checks, all of which was then and there well known to the said Everett Nelson and the said A. C. Grandbouche, but that, notwithstanding such knowledge on the part of the said Everett Nelson and A. C. Grandbouche aforesaid, the said Everett Nelson, then and there acting jointly and in a conspiracy with the said A. C. Grandbouche to injure and defraud the said Citizens State Bank of Upton, did then and there wilfully and unlawfully cause the said two false, fraudulent and worthless cheeks in the said sum of Twenty-five Hundred Dollars each, or Five Thousand Dollars in all, so wrongfully and fraudulently drawn and uttered by the said A. C. Grandbouche as aforesaid, upon the said Citizens State Bank of Upton, as aforesaid, to be fully paid out of the funds and money of the Citizens State Bank of Upton, and that the said Everett Nelson and A. C. Grandbouche aforesaid, then and there at the time and place aforesaid, and while acting in concert and conspiring together to injure and defraud the said Citizens State Bank of Upton, as aforesaid, did wilfully, wrongfully and feloniously, by the manner and means aforesaid, at the time and place aforesaid, misapply of the said money and property of the Citizens State Bank of Upton, aforesaid, the said sum of Five Thousand Dollars, by withdrawing said sum of money from said bank by means of said false, fraudulent and worthless cheeks aforesaid, and then and there and thereby converting the same to their own use, with intent then and there to wilfully and unlawfully injure and defraud the said bank out of the said sum of Five Thousand Dollars, lawful money of the United States, contrary to the form of the Statute in such case *95 made and provided, and against the peace and dignity of the State of Wyoming'. Section 7136, Wyo. C. S. 1920 reads as follows: ‘ ‘ Every president, director, eashiez*, teller, clerk or agent of any banking' association who shall embezzle, abstract or wilfully misapply any of the moneys, funds or credits of such association, or shall issue or put forth any certificate of deposit, draw any order, bill of exchange, make any acceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment or decree; or shall make any false entry on any book, report or statement of the association, with intent in either case to injure or defraud such association, or to injure or defraud any other company, body corporate or politic, or any individual person, or to deceive any officer or agent appointed to inspect the affairs of any banking association in this state, shall be deemed guilty of a felony, and upon conviction thereof shall be confined in the penitentiary at hard labor not more than ten years.” In order to discuss intelligibly the defendants’ several assignments of error, a brief statement of the facts in the case, as disclosed by the evidence, is necessary. On, and for sometime prior to, October 18th, 1921, defendants were directors of the Citizens State Bank of Upton, the bank being located at Upton, in Weston County, and defendant Nelson was cashier and vice president and in active charge of the bank. On or about October 15th, 1921, defendant Grandbouche agreed with one H. B. Shields to purchase for $17,000 Shield’s stock 'in the People’s Bank of Moorcroft, this bank being in Crook County. As part payment for the stock in the Moorcroft bank, defendant Grandbouche delivered to Shields at Moorcroft two checks for $2,500 each drawn by Grandbouche on the Citizens State Bank of Upton, payable to Shields. The remainder of the consideration, $12,000, was paid by note. The two checks were deposited by Shields in the Bank of Gillette and Shields got the money, and assigned a part of the stock in the Moor- *96 croft bank to Grandbouche, and, at Grandbouche’s direction, a portion was assigned to defendant Nelson and a portion to others. The $12,000 note was given by Grandbouche as part consideration for the bank stock was secured by collateral, a part of the collateral being a $2,000 note signed by defendant Nelson and payable to defendant Grand-bouche and in turn secured by stock in the Citizens State Bank of Upton. On October 15th, 1921, the day the two $2,500 checks were given, Grandbouche’s account in the Citizens State Bank of Upton was overdrawn $124.55, and' on October 18th, the day the checks were paid bj the Citizens State Bank of Upton, it was overdrawn $176.25, and was overdrawn at all times between the 15th and the 26th of October, the day the bank closed. On October 18th, 1921, the two Grandbouche cheeks were presented to the Citizens State Bank of Upton for payment. At that time, one Charles Sleichter was clerk and assistant cashier of the Citizens State Bank of Upton, receiving his instructions principally from defendant Nelson but occasionally from defendant Grandbouche. The two $2,500 checks came to Sleichter’s attention through the Bank of Upton, a second bank doing business at Upton, as clearings for the day’s business, the Bank of Upton being the correspondent through which the bank of Gillette, which had previously cashed the two checks, did business in Upton. Mr-. Sleichter telephoned defendant Nelson, who was in Moor-croft, and asked him what was to be done with the two Grandbouche checks, and was told by Nelson to pay them and carry them on the bank books as cash, defendant Nelson telling Sleichter in that conversation that Grandbouche had the “stuff in his pocket” to take care of the checks. A draft was drawn by Sleichter, pursuant to Nelson’s instructions, on the Citizens National Bank of Cheyenne, in which bank the Citizens State Bank of Upton had an account subject to draft, in a sum sufficient to cover that day’s business with the Bank of Upton, including the two *97 Grandbouche cheeks, and was delivered to the bank of Upton, and afterwards in due course of mail presented to the Cheyenne bank and paid, and thereafter the two Grandbouehe cheeks were carried in the bank as cash, not being charged to Grandbonche’s account, until the bank was closed by the State Examiner on October 26th, 1921, this arrangement being carried out under instructions from defendant Nelson. At the time of the transaction of October 18th, the Citizens State Bank of Upton had actual cash on hand in the sum of $537.18, and Grandbonche’s account was overdrawn as above stated. On October 19th, defendant Nelson returned to the Citizens State Bank of Upton and then told Sleiehter that Grandbouche would be down right away with the money to take care of the two checks and in the meantime to carry them as cash. The same day, October 19th, a state bank examiner, Grier, was in the Citizens State Bank of Upton and Nelson made the same statements to Grier regarding Grandbouche’s taking care of the checks, stating to Grier that Grandbouche had the “stuff in his pocket” to take care of the checks, and would be down the next day and take care of them. On October 24th or 25th, Grier had another conversation with Grandbouche at the Citizens State Bank of Upton in which conversation Grier told Grandbouche that the two checks would have to be “fixed up,” and Grandbouche replied that if they would give him two or three hours he could probably raise the cash. Grandbouche returned in three or four hours with a letter from Mark Shields of the Bank of Gillette stating he would loan Grandbouche $5,000 if Grandbouche would put up some of the notes of the Upton Bank as collateral. Grier refused to allow this to be done. Grandbouche then left again to raise the $5,000 but did not return with it, and the bank was closed October 26th. On October 18th, when the two Grandbouche checks were cashed, there was a $3,700 note that the Citizens State Bank of Upton had sent to the Citizens National Bank at Cheyenne to be discounted and credited to the Upton bank’s account there. The Chey- *98 emie bank had refused this credit, which resulted in an overdraft in the Cheyenne bank. However, the Upton bank gave itself credit on its books, for the $3,700 note. This note, together with the two Grandbouche checks carried as cash, 'deducted from all the assets of the Upton bank everywhere left that bank with its cash reserve and funds entirely exhausted — in fact, $5.00 less than nothing. On October 24th or 25th, in a conversation with the cashier of the Citizens National Bank of Cheyenne, defendant Nelson said, in discussing the bank situation, that he had been fooled. The above is a brief statement of the State’s testimony. The defendant’s testimony contradicts very little of the above, except by way of denial of certain of the conversations above enumerated. The defendants claimed that Nelson was not associated with Grandbouche in the purchase of the Moorcroft bank stock, but took the shares assigned to him as security for a loan of $5,000 which Nelson, as cashier, wms to make to Grandbouche from the Upton bank to take care of the two $2,500 checks. They claimed that they thoroughly examined the Moorcroft bank before the purchase of the stock and found it in good condition, the stock being worth about $130 per share; that they were acting under advice of counsel as to handling the Moorcroft bank purchase; that defendant Nelson was to be president and have charge of the Moorcroft bank until the $5,000 loan from the Citizens State Bank of Upton to Grandbouche should be repaid; that complete arrangements had been made with Nelson for the $5,000 loan before the checks were given to Shields; that the security, consisting of the Moor-croft bank stock, had been delivered to Nelson; that neither defendant had any intent to defraud the Upton bank; that at the time of the deal the Upton bank was in a “good thrifty condition; ’ ’ that during the time of negotiating the purchase of the Moorcroft bank stock the Upton bank was expecting some deposits of around $5,000; that no. note was made by Grandbouche and the certificates of stock in the Moorcroft bank were not attached to the two $2,500 checks *99 of Grandbouche because the certificates were not properly made out; the transaction was not explained to Grier, the bank examiner, because Grier didn’t give Nelson time to explain. There was also testimony from several witnesses as to the good reputation of defendants. Without going into details further as to the evidence in the case, it tends strongly to show that Grandbouche, when he drew the two checks, was insolvent and that the Citizens State Bank of Upton was insolvent and in failing circumstances; and conclusively proves that Grandbouche’s account was overdrawn when he gave the two checks, and that the Citizens State Bank of Upton did not have $5,000 to loan. The evidence of the defendants also fails to explain in a satisfactory manner why the loan of $5,000 was not completed by the giving of the note and attaching the stock of the Moorcroft bank thereto as security. The evidence leaves a strong- impression, to say the least, that Nelson was, a purchaser of this stock with Grandbouche, that no loan was ever contemplated, and that the transaction was carried out exactly as Nelson and Grandbouche intended it should be. There are thirty-one assignments of error, but as only seven of the thirty-one are discussed in appellant’s brief, it is necessary for us to consider only the seven discussed. They are: 1. The information is insufficient in that it does not aver that the misapplication of funds was made by defendants in their official capacity as directors. 2. The words “wilfully misapplied” as used in the information are not sufficient, as the manner' in which the misapplication was made must be shown. 3. The information charges two offenses inasmuch as it avers the drawing and payment of two checks, and this should be alleged in two counts. 4. The offense, if any, was not committed in "Weston County, but was committed either in Crook County, where the cheeks were delivered, or in Laramie County, where the *100 draft was paid, and hence the court sitting in Weston County had no jurisdiction. 5. The verdict is not sustained by sufficient evidence, inasmuch as intent to defraud was not shown, but, on the contrary defendants’ good faith is shown by the evidence. 6. The court overruled the motion for new trial pro forma without giving defendants an opportunity to be heard. 7. The trial court failed to charge the jury as to the law of reasonable doubt. The sufficiency of the information was attacked in the trial court by motion to quash, plea in abatement, demurrer, and motion in arrest of judgment. The defendants, to uphold their contention that the information was defective, in failing to state that the misapplication of funds was made by defendants in their official capacity, cite the following cases: Moore vs. U. S. 160 U. S. 268; 16 S. Ct. 274, 40 L. ed. 422; State vs. Winstandley, 154 Ind. 443 ; 57 N. E. 109; U. S. vs. Northway, 120 U. S. 327, 7 Sup. Ct. Rep. 580, 30 L. ed. 664. In the case of U. S. vs. Northway, 120 U. S. 327, 7 Sup. Ct. 580, 30 L. ed. 664, the court had under consideration the sufficiency of an indictment under the U. S. Revised Statutes, Section 5209, (Comp. St. See. 9772), which section is almost identical with Section 7136, Wyoming Compiled Statutes of 1920. And there the count of the indictment under consideration was for wrongfully, unlawfully and wilfully misapplying certain funds of the bank, with intent to injure the association, by paying and causing to be paid to certain persons out of certain funds then and there the property of the association a large sum of money in the purchase by him, the defendant, for the use, benefit and advantage of himself, of a large number of shares of the capital stock of certain companies. There was an allegation that the defendant at the time of the misapplication was president and agent of the bank, but there was no allegation that he misapplied the funds as president, nor that the *101 funds bad previously come into tbe possession of defendant by virtue of bis office. Tbe court, in bolding tbe count good, used this language: “In order to misapply tbe funds of tbe bank, it is not necessary that tbe officer charged should be in actual possession of them by virtue of a trust committed to him. He may abstract them from tbe other funds of the bank unlawfully, and afterwards criminally misapply them, or by virtue of his official relation to^ tbe bank be may have such control, direction, and power of management as to direct an application of tbe funds in such a manner and under such circumstances as to constitute tbe offence of wilful misapplication. And when it is charged, as in tbe counts of this indictment, that be did wil-fully misapply certain funds belonging to tbe association, by causing them to be paid out to his own use and benefit in unauthorized and unlawful purchases, without the knowledge and consent of tbe association, and with tbe intent to injure it, it necessarily implies that tbe acts charged were done by him in his official capacity, and by virtue of power, control, and management which lid was enabled to exert by virtue of bis official relation. This, we think, completes tbe offence intended by tbe statute of a wilful misapplication of tbe moneys and funds of a national banking association.” In tbe case of Moore vs. U. S., 160 U. S. 268, 16 S. Ct. 294, 40 Law Ed. 422, cited by defendants as upholding their contention, the defendant was charged with tbe embezzlement of funds of a Post Office, tbe indictment alleging “the said George S. Moore, being then and there an assistant clerk, or employee in or connected with tbe business or operations of the United States Postoffiee in tbe city of Mobile in tbe State of Alabama, did embezzle tbe sum of. money of tbe United States, of tbe value of., tbe said money being the personal property of the United States.” Tbe court says: “Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted or into whose hands it has lawfully come. ’ ’ And the court bolds that where an indictment *102 charges an embezzlement, an allegation that the property came into the defendant’s hands as an officer or employee must be alleged. But the Wyoming statute makes: the offense consist in any director, cashier or agent of any banking association embezzling or wilfully misapplying any of the funds of the association with intent to injure or defraud such association; and the information under consideration does not charge an embezzlement but a wilful misapplication. The information charges that defendants were directors of the bank and that they did wilfully misapply the funds of the bank with intent to injure and defraud the bank and the manner in which the misapplication was carried out is fully set forth. If defendants were directors of the bank at the time of the misapplication and while such directors did wilfully misapply the funds of the bank, we fail to see how it would add anything to the charge to state that they misapplied the funds in their official capacity. As was said in the case of U. S. v. Northway, (supra) : “Now, if in addition it be necessary to the commission of the offense of wilfully misapplying the funds of the bank, that they should have come previously into the possession of the defendant in his official capacity, so that he could be said to have been intrusted with 'their possession, all distinction between the offenses of wilfully misapplying the funds and of embezzlement would disappear. But it is evidently the intention of the statute not to use the word ‘embezzle’ and ‘wilfully misapply’ as synonymous.” In that case, the court further says, as shown above, that when it is charged that defendant wilfully misapplied certain funds of the bank, “it necessarily implies that the acts charged were done by him in his official capacity. ” In a strict sense we doubt if bank officials could misapply funds of the bank with intent to defraud the bank in their ‘ ‘ official capacity. ’ ’ For the felonious and fraudulent misapplication of funds would be beyond the power of officials, of the bank to commit in their “official capacity.” . *103 Tbe defendants cite tbe case of State v. Winstandley 154 Ind. 443, 57 N. E. 109. But this case was brought under a statute entirely unlike tbe statute under which defendants were prosecuted. The information in the Winstandley case was under a statute declaring every officer of an incorporated bank guilty of embezzlement who' fraudulently receives money from a person not indebted to the bank, when the bank is insolvent, so that the money is lost to the depositor. The court held that inasmuch as the statute made the crime embezzlement, the information must follow the necessary wording of an embezzlement information by alleging that defendant received the money in his official capacity. Whether that decision would be followed by this court under a like statute, we need not decide, as we are not dealing with a transaction declared by statute to constitute embezzlement. It is next objected that the manner in which the funds were wilfully misapplied is not sufficiently set out in the information. While it is no doubt true that an allegation merely that defendant wilfully misapplied the funds of the bank with intent to defraud would not, standing alone, be sufficient, inasmuch as the words “wilfully misapplied” have no settled meaning in criminal law as do the words ‘ ‘ embezzle ’ ’ and ‘ ‘ steal, ’ ’ still we think the manner in which the wilful misapplication was accomplished is sufficiently pleaded in the information under consideration. A mere reading of the information would apprise defendants of just what they are accused of doing, so that they could adequately prepare their defense and in ease of conviction plead that conviction in bar of another prosecution for the same transaction. Among the cases cited by defendants to sustain their contention that the manner in which the misapplication was accomplished is not sufficiently alleged, only two seem to us to have any bearing on the question. These are U. S. vs. Norton, (D. C.) 188 Fed. 256, and U. S. vs. Morse, (C. C.) 161 Fed. 429. The Norton ease, decided by a district court, holds that an indictment is not *104 sufficient which, charges that .defendant, while an officer of a bank, with intent to injure or defraud, unlawfully and wilfully misapplied and converted to his own use, funds of the bank, by withdrawing money therefrom upon a charge ticket, pursuant to which the amount withdrawn was charged to his account; but that there must be an allegation that the defendant was insolvent and that the overdraft was not paid; also that a count alleging that the unlawful and fraudulent misapplication was accomplished by defendant by paying to himself the amount of a draft drawn by a customer on a third party to whom the bank was not indebted, is insufficient in the absence of an averment that the drawee was insolvent or of other facts showing that the draft was not collectible. If the court intended to lay down the doctrine in this decision, that a charge of wilfully misapplying the funds of a bank is not complete without allegations showing that the bank could not by any -means recover the funds, or their equivalent, so wrongfully and unlawfully misapplied, then we do not hesitate to state that we are not in accord with that decision. In our opinion the crime is completed when funds of a bank are wilfully and unlawfully misapplied with intent to defraud the bank, and the fact that the bank might recover the funds so unlawfully misapplied, has nothing to do with the case. Of course, the solvency of the bank official who caused an overdraft to be paid to himself would undoubtedly be competent evidence on the part of defendant, as bearing upon the question of his intent, but that is a matter of evidence and not of pleading. The case of U. S. v. Morse (supra) is in our opinion much better reasoned than the Norton case. That is a case decided by the Circuit Court of the Southern District of New York, and the opinion is by Judge Hough. In that case the learned Judge writing the opinion went very extensively into the decisions of the United States courts, especially the decisions of the United States Supreme Court, and sustained an indictment for wilfully misapplying funds of a *105 bank, which failed, to allege that the overdraft payment was unauthorized, by the bank directors, or that there was an actual conversion of the amount paid on the overdraft, or that the money was in some way absolutely lost to the bank. The indictment in the Morse case is very similar to the information in the ease at bar. In overruling a demurrer to the indictment, Judge Hough uses this language: “It must follow that when the indifferent facts, the acts reconcilable in themselves with either honesty or criminality, are clearly stated, a general allegation of criminal intent gives to the accused every warning he can reasonably claim, because the only question left (if the facts alleged are true) is addressed to his own consciousness, concerning which he alone has full information. ’ ’ And again: “On principle these defendants could not have possessed authority to produce or permit a conversion of the funds of the bank to Morse’s use. Authority to commit a crime is an impossibility. * * * It cannot be necessary to negative a legal impossibility. ’ ’ And further: 1 ‘ Conversion is a technical term, and it is a fair question: Could the bank have maintained an action sounding in tort, against Morse, for this $126,000, directly it was paid out, assuming ability to prove the above-recited allegations? I think it could, and, if so, the conversion is sufficiently alleged. The fact that at some subsequent time the money was refunded would be perhaps persuasive evidence that there was no intent to defraud; but that the pecuniary loss remained actual down to the indictment must be immaterial * * * The crime was committed when the taking occurred, and no subsequent repentance or reparation can wipe that out.-’ ’ *106 We think the allegation as to wilful misapplication are sufficiently alleged in the information in question. The next and last question raised as to the information is that it charges two offenses, inasmuch as it avers the drawing and payment of two checks. In this connection, defendants cite the case of U. S. vs. Martindale, (D. C.) 146 Fed. 280, at page 288. The court there says that where an officer of a bank is charged in an indictment with the fraudulent misapplication of its funds in the payment of several and distinct notes, each payment constitutes a separate misapplication, and must be charged in a separate count. The facts in that case do not appear from the statement. Doubtless, if separate notes are paid at different times by misapplying the bank’s funds at different times, the different payments would constitute separate offenses. However, in the case at bar, it is alleged that defendant G-randbouche made two checks on the same date and delivered them to Shields at the same time, that they were presented for payment at the same time and paid at the same time from funds of the bank. Clearly it seems to us this would constitute but one misapplication of funds. The crime did not consist in the drawing and delivery of the checks, but in applying the bank’s funds to their payment. The payment was but a single transaction and is so alleged and would constitute but one offense. This is too plain to require citation of authority. We therefore hold that the information was good and that the motions and demurrer filed against it were prop-. erly overruled. The evidence showed that the two’ checks were drawn and delivered in Crook County, and that they were paid by a draft drawn and delivered in Weston County by the defendant Nelson as cashier of the Citizens State Bank of Upton and that the draft was paid in Laramie County from funds of the Citizens State Bank of Upton oh deposit in the Citizens National Bank of Cheyenne. The defendants claim that the crime, if any, was committed either in Crook or *107 Laramie County and not in Weston County. The crime alleged is the fraudulent and wilful misapplication of the funds of the Citizens State Bank of Upton in the payment of the two checks out of the bank’s funds. The drawing and delivery of the two checks did not constitute the crime charged any more than buying a set of burglar tools would constitute the crime of burglary afterwards committed by the use of those tools. So, too, the crime was committed when the funds of the bank were used to pay the checks. The fact that the two cheeks were paid by draft rather than cash could not make any difference. The funds of the bank were misapplied when the draft was delivered. The draft was payable to the Bank of Upton and that bank accepted the draft in payments of the checks. This constituted a payment of the checks. 8 Corpus Juris, 568, 30 Cyc. 1199. The Citizens State Bank of Upton, became absolutely liable upon the draft as soon as it was delivered. The draft was afterwards paid from funds of the Upton bank and its funds were therefore misapplied when the draft was delivered in Weston County. It is next claimed by defendants that the evidence is not sufficient to show an intent to defraud the Citizens State Bank of Upton. We have briefly stated the evidence heretofore in this opinion and think it sufficient to say that in our opinion the jury was justified in drawing the conclusion therefrom that their verdict indicates they did draw. Complaint is also made of the action of the trial court in overruling the motion for new trial "pro forma.” All that need be said on this point is that defendants, are in this court by direct appeal and not by proceedings in error. A motion for new trial was not necessary, and is not contemplated by the direct appeal statute. Their motion for new trial and order thereon, moreover, are not embodied in a bill of exceptions, as required in proceedings in error, and hence in such a proceeding eonld not be considered by this court. We might also add that all points raised in the motion for new trial are embodied in the specifications of error *108 which, we are now considering and overruling; said specifications having been filed in the court below as provided by the direct appeal statute. Lastly, it is complained that the trial court failed to charge the jury as to the law of reasonable doubt. The record shows no exceptions taken to any of the instructions given by the court and no exceptions to the refusal of the trial couid to give any instructions requested by defendants, and, therefore, no error can be predicated upon the giving or refusing to give any of the instructions complained of in the specifications of error. However, we may add that we have examined the instructions given by the trial court and find that the jury was properly instructed as to the burden of proof and the law of reasonable doubt and that the case was fairly presented to the jury by the trial judge in his instructions to the jury. Finding no error in the proceedings of the trial court, the judgment of that court will be affirmed, and it is so ordered. Affirmed. PotteR, Ch. J., and Riner, District Judge, concur. District Judges Tidball of the Second District and Riner of the First District were called in to sit in said case instead of Justices Blume and Kimball respectively.