Colorado § 11-107-102 - Receipt of deposits while insolvent.

§ 11-107-102. Receipt of deposits while insolvent.

It is a criminal offense if a state bank receives any deposit while insolvent or an officer, director, or employee knows or, in the proper performance of the officer's, director's, or employee's duty, should know of such insolvency and receives or authorizes the receipt of such deposit or if such state bank or person has knowingly concealed or misstated material facts regarding the insolvency of the state bank from or to the banking board, commissioner, or division of banking.

Source: L. 2003: Entire article added with relocations, p. 1135, § 3, effective July 1. L. 2024: Entire section amended, (HB 24-1351), ch. 461, p. 3206, § 31, effective August 7.

Editor's note: This section is similar to former § 11-11-102 as it existed prior to 2003.

ANNOTATION

I. General Consideration.

II. Necessity for Intent or Knowledge.

I. GENERAL CONSIDERATION.

Annotator's note. Since § 11-107-102 is similar to repealed laws antecedent to CSA, C. 18, § 26, relevant cases construing those provisions have been included in the annotations to this section.

Section is valid under the federal constitution. This section as originally found in L. 1885, p. 50, was held not within the class of legislation prohibited by the provisions of the federal constitution. When the law applies to all persons engaged in a certain occupation or business, and each one is without distinction amenable to its provisions solely because he pursues such occupation or business, it is then "binding upon all persons of the community under similar circumstances". Robertson v. People, 20 Colo. 279, 38 P. 326 (1894).

It is not essential to a conviction that the president of a bank should assent to a particular deposit, or that he should have acquiesced in its reception after he obtained actual knowledge that it had been made. McClure v. People, 27 Colo. 358, 61 P. 612 (1900).

When an officer and director of a bank with authority to instruct the employees as to what they should and should not do remains silent, it is mere sophistry to say that he did not assent to the reception of deposits, even when made in his absence, when as a reasonable man he knew they would be received by the employees if presented. Woolsey v. People, 98 Colo. 62, 53 P.2d 596 (1935).

Indictment sufficient to charge "larceny" for violation of this section. Cole v. Van Horn, 67 F.2d 735 (10th Cir. 1933).

Facts sufficient to show insolvency. Walther v. McFerson, 92 Colo. 314, 20 P.2d 552 (1933).

II. NECESSITY FOR INTENT OR KNOWLEDGE.

An intent to violate the provisions of this section must be shown. Under this section a director of a bank may not be held liable, either civilly or criminally, for a violation of the provisions of the statute unless the evidence shows that he intended to violate its provisions. Goldsworthy v. Anderson, 92 Colo. 446, 21 P.2d 718 (1933).

It is not necessary that a specific intent to defraud or harm a depositor should be shown on the part of defendant, or that defendant had actual knowledge of the insolvency of the bank, if his ignorance of its insolvency was due to his own criminal negligence. McClure v. People, 27 Colo. 358, 61 P. 612 (1900).

Intentional absence by officer will not exempt him from liability. An officer of a bank cannot exempt himself from criminal liability under this section by intentionally absenting himself from the bank and abstaining from participation in its management, and purposely neglecting to avail himself of means of information as to its financial condition, or by showing that if he had given attention to its business, on account of his ignorance of banking methods he would not have been able to ascertain its true condition. McClure v. People, 27 Colo. 358, 61 P. 612 (1900).