On writ of error to the Court of Quarter Sessions of Hudson County.
For the plaintiffs in error, John G. Flanigan and Alexander Simpson.
For the defendant in error, Daniel O'Regan, prosecutor of the Pleas, and Atwood C. Wolf, assistant prosecutor of the Pleas.
Before Justices Trenchard, Bodine and Heher.
The opinion of the court was delivered by
TRENCHARD, J. The plaintiffs in error, Henry C. Steneck and George W. Steneck (herein called defendants), were convicted upon an indictment charging a violation of section 17 of the "Act concerning trust companies" (Comp. Stat., p. 5661, as amended by Pamph. L. 1929, p. 699), in that they willfully, unlawfully and knowingly subscribed and exhibited to Frank H. Smith, then commissioner of banking and insurance, a certain paper, being a report in writing of the condition of the Steneck Trust Company as at the close of business on March 25th, 1931, which report of condition was false and untrue, and was so subscribed and exhibited with intent to deceive the commissioner as to the condition of the company.
The defendants assign errors and specify causes for reversal pursuant to section 136 of the Criminal Procedure act.
At the trial it appeared that the Steneck Trust Company was incorporated under the "Act concerning trust companies" on April 13th, 1914, and opened for business in the city of Hoboken immediately thereafter. John Steneck, its founder, died in the early twenties, and left his sons and family in control. One son, the defendant Henry C. Steneck, succeeded to the presidency and became the guiding head. The evidence tended to show, without substantial dispute, that he "ran, managed and supervised" the company, and the other son, the defendant George W. Steneck, was vice-president, and, among other things, largely had charge of the buying and selling of the stocks, bonds and other securities for the company, and it was proved, if not expressly admitted, that the directors "did not run the bank." In fact the evidence tended to show that the Steneck Trust Company was a strictly family affair and that its management and affairs were rigidly controlled and dominated by Henry C. Steneck, assisted by his brother, George.
The proofs show that a "call" was sent out to all trust companies within this state to render to the banking commissioner a true report of conditions as at the close of business March 25th, 1931. The authority for issuing this call is contained in section 16 of the Trust Company act. The forms for these reports of condition are prescribed and furnished by the commissioner, and the act provides that they must be verified by the oaths of the president or vice-president and the secretary or treasurer of each trust company, and attested by the signatures of at least three directors. Every such report must "exhibit in detail and under appropriate heads the resources and liabilities * * * at the close of any day past specified by the commissioner, and shall be transmitted to him within twenty days after the receipt of the request or requisition therefor by him." It must also be published at least once in a local newspaper, and proof of such publication must be affixed to the report when filed.
The penalty for filing a false report is set out in section 17 of the act, which provides:
"Every incorporator, stockholder, director, officer, agent or clerk of any trust company or proposed trust company who willfully and knowingly subscribes or makes any false statement of facts, or any false oath or affidavit, or false entries in the books of such trust company, or proposed trust company, or knowingly subscribes or exhibits any false paper with intent to deceive any person authorized to examine as to the condition of said trust company, or willfully ...