120 Mo. 479 | Mo. | 1894
Defendant and Thomas Gr. McCrosky were indicted in the circuit court of DeKalb county for receiving a deposit of $60 as private bankers in the
The indictment is in two counts, and, omitting the' formal parts, is as follows:
“The grand jurors for the state of Missouri summoned from the body of DeKalb county, impaneled, charged and sworn upon their oaths present that Harvey S. Buck and Thomas Gr. McCrosky late of the county aforesaid, on the eighth day of November, A. D. 1887, at the county of DeKalb, state aforesaid, being then and there owners and managers of a private bank known as Stewartsville bank, the same being a banking institution doing business in said county, a certain deposit of money, to wit, $60, lawful money of the United States, of the value of '$60, the money and property of Thos. H. Lake, unlawfully and feloniously did then and there take, have and receive on deposit in said Stewartsville bank, a private banking institution, after they, the said Harvey S. Buck and Thomas Gr.*484 McCrosky, owners and managers aforesaid, had knowledge of the fact and well knew that said Stewartsville hank was then and there in failing circumstances; and so the said Harvey S. Buck and Thomas Gr. McCrosky aforesaid, the money aforesaid, to wit, $60, of the value of $60, the money and property of the said Thomas H. Lake, in manner aforesaid, unlawfully and feloniously did take, steal and carry away, against the peace and dignity of the state.
“The grand jury, for the county and state aforesaid, summoned, impaneled, charged and sworn as aforesaid, upon their oaths aforesaid,'further present that Harvey S. Buck and Thomas Gr. McCrosky, late of the county aforesaid, on the eighth day of November, A. D. 1887, at ’the county of DeKalb, state aforesaid, being then and there owners and managers of a private bank, known as the Stewartsville bank, the same being a banking institution doing business in said county, a certain deposit of money, to wit, $60, lawful money of the' United States, of the value of $60, the money and property of Thomas H. Lake, unlawfully and feloniously did assent to the taking, having and receiving on deposit in said Stewartsville bank, a private bank- • ing institution, after they, Harvey S. Buck and Thomas Gr. McCrosky, owners and managers as aforesaid, had knowledge of the fact and well knew that Stewartsville bank was then and there in failing circumstances; and so the said Harvey S. Buck and Thomas Gr. McCrosky aforesaid, the money aforesaid, to wit, $60, of the value of $60, the money and property of the said Thomas H..Lake, in manner aforesaid, unlawfully and feloniously did steal, take and carry away, against the peace and dignity of the state.”
On May 19, 1891, defendant filed his motion to1 quash the indictment which was overruled. At an adjournment of the same term held during the month
“Because the said defendant heretofore, to wit, on the eighteenth day of September, 1890, was, in the Harrison county, Missouri, circuit court, convicted of receiving money on deposit as a private banker at 'Stewartsville, in the county of DeKalb, the property and money of Thomas Allen, and was, on the eighteenth day of September, 1890, by the said court, sentenced to a term of two years in the penitentiary of the state of Missouri, and that said conviction and sentence is in full force and standing against him, and, therefore, he should not be put upon his trial before the same is set aside or expires, for the reason that the certificate of the circuit clerk of DeKalb county, Missouri, to the transcript of the record and proceedings is not made according to law, and this court has not acquired any jurisdiction over the defendant by reason thereof, and because the transcript fails to show that said indictment was returned into court in the presence of the grand jury and their foreman.” This motion was also overruled.
Upon a trial had, defendant was convicted and his punishment fixed at two years’ imprisonment in the penitentiary. From the judgment and sentence he appealed to this court.
The evidence shows that the deposit was made, and the bank failed, and that its doors were closed as alleged in the indictment.
It is contended by counsel for defendant that the circuit court of Harrison county'had no jurisdiction of the case; that the change of venue was ordered in case number four, while defendant was Hied and convicted in number one. This they claim is shown from the fact that the figure “4” is found on the right of the'
But if there were any room for doubt as to whether or not the motion for the change of venue and the order in pursuance thereof granting it were in this case, the certificate of the clerk of’ the circuit court of Harrison county, attached to the transcript in which it is stated “that the above and foregoing is a true and correct transcript of the record and bill of exceptions, as the same is of record and on file in my office in the above entitled cause” conclusively shows that the order granting the change of venue was made in this cause.
In State v. Buck, 108 Mo. 622, the indictment, *of which the one in the case in hand is almost an exact copy, after a careful consideration of all the objections urged against it, was held to be good, and no good
The first, second and fourth instructions given on the part of the state are criticised by the defendant, but we are unable to see any substantial objection to them. They seem to have been predicated upon the facts as disclosed by the evidence and to contain a correct exposition of the law as we understand it.
There was no error committed in refusing instructions on the part of defendant.
The third instruction given on the part of the state is also assailed. It is as follows:
“3. The court instructs the jury that the failure of the banking institution in this cause is prima facie evidence of the knowledge on the part of the managers and owners that the same was in failing circumstances on November 8, 1887. The court instructs the jury that prima facie evidence is such that raises such a degree of probability in its favor that it must prevail, unless it is rebutted or the contrary proved.”
The instruction is predicated upon section 1350, Revised Statutes, 1879, as amended by the act of 1887, section 3581, Revised Statutes, 1889, which is as follows:
‘ ‘If any president, director, manager, cashier or other officer of any banking institution, or the owner, agent or manager of any private bank or banking institution doing business in this state, shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution, or if any such officer, owner or agent shall create or assent to the creation of any debts or indebtedness by any such bank or banking institution, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking-institution, after he shall have had knowledge of the*488 fact that such banking institution or the owner or owners of any such private bank is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished in the manner and to the same extent as is provided by law for stealing the same amount of money deposited, or valuable thing: Provided, that the failure of any such bank or banking institution shall be prima facie evidence of knowledge on the part of any such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit.”
The gravamen of the offense was in receiving the money on deposit with the knowledge on the part of the defendant that the bank was insolvent or in failing circumstances, and the proviso to the statute makes the subsequent failure of the bank prima facie evidence, not alone of the insolvency of the bank at the time the money was received, but of the knowledge of the persons therein named of that fact. Section 28, article 2, of the constitution of this state, provides that “the right to trial by jury, as heretofore enjoyed, shall remain inviolate.” Defendant’s contention is that the statute is in conflict with the provision of the constitution quoted, in that it takes away from the jury the right to determine the weight of evidence for themselves; that which the statute makes prima facie evidence. Upon this question there is some conflict in the authorities.
Mr. Cooley, in his work on Constitutional Limitation [6 Ed.], p. 374, says: “Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. * ' * * The mode of investigating the facts, however, is the same in all; and this is through a trial by jury, surrounded by certain safe
In Wynehamer v. People, 13 N. Y. 446, Selden, J., in passing upon a question similar to the one now under consideration, says: “Precisely how far the legislature may go, in changing the modes and forms of judicial proceeding, I shall not attempt to define; but I have no hesitation in saying that they can not subvert that fundamental rule of justice which holds that every man shall be presumed innocent until he is proved guilty.”
In State v. Beswick, 13 R. I. 211, the statute under consideration prohibiting the sale of intoxicating liquors, provides that it shall not be necessary to prove ■an actual sale of liquors * * * in any building, shop, saloon, place or tenement,- in order to establish the fact that liquors are kept there for sale; but the notorious character of any such premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances actually pertaining to grog shops, tippling shops, or places where such liquors are sold, shall bq prima facie evidence that said liquors are kept on such premises for purposes of sale. It was held that the statute making the recited circumstances prima facie evidence against an accused, was unconstitutional and void, in depriving the accused of the protection of the common law principle that every person is to be presumed innocent until he is proved guilty, and repugnant to the constitutional provision of that state that an accused shall not “be deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land.”
In State v. Divine, 4 S. E. Rep. 477, the court passed upon a statute which provides that whenever any live stock shall be killed by the engines or cars on
The question now under consideration was not involved in the case of Clark v. Mitchell, 64 Mo. 564, and what is said in that opinion with respect to the right of trial by jury was merely by way of argument. Upon the question in issue, we are entirely satisfied with that opinion.
As announcing a contrary rule to that announced by the authorities heretofore cited, it has repeatedly been held that the legislature has the right to declare what shall be presumptive evidence of any fact. Hand v. Ballou, 12 N. Y. 543; People v. Mitchell, 45 Barb. 210; Hickox v. Tollman, 38 Barb. 608; Donahue v. O’Conor, 45 N. Y. Superior Court Rep. 297; Howard v. Moot, 64 N. Y. 262; Adkins v. Railroad, 36 Mo. App. 652; Heman v. Wolff, 33 Mo. App. 200; Ess v. Bouton, 64 Mo. 105; State v. Kingsley, 108 Mo. 135.
Mr. Rice, in his work on Evidence, volume 3, section 27, says: “Legislation of the character in question, as to the rules of evidence, is not without precedent, nor is its validity a question unadjudicated. In Com. v.
“The court held the statute to be constitutional, and the view taken of it is that it only prescribes, to a certain extent and under particular circumstances, what legal effect shall' be given to a particular species of evidence, if it stands entirely alone and is left wholly unexplained; that this evidence neither conclusively determines the guilt or innocence of the party who is accused, nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried; that the purpose and effect of the clause of the statute are to simply give a certain degree of artificial force to a designated fact until such explanations are afforded as to show that it is at least doubtful whether this proposed statutory effect ought to be attributed to it, but the fact itself is still to be shown, and established
“In Com. v. Wallace, 7 Gray, 222, where the indictment was for an unlawful sale of spirituous and intoxicating liquors, it was again contended that the provision in question was unconstitutional, and applied only where a naked delivery was proved without any accompanying circumstances; and the trial judge was requested, inter alia, to so charge; but he refused, and instructed the jury that, if there was proved beyond a reasonable doubt- a delivery of intoxicating liquor by the defendant from any building or place other than a private dwelling house or its dependencies, it would be prima fade evidence of a sale, and would warrant a conviction, but that the circumstances under which the delivery was made might rebut the presumption or the presumption might be rebutted by proof. The supreme court overruled the exceptions taken to the instructions given. Com. v. Rowe, 14 Gray, 47, maintains the same doctrine, and that the burden is on the government to
“A statute of Maine provided that whenever an unlawful sale of intoxicating liquor is alleged, and delivery proved, it shall not be necessary to prove a payment, but such delivery shall be ‘sufficient evidence of sale.’ This provision was held to be constitutional. ‘Delivery, in the absence of all other proof,’ says the court, ‘is made sufficient evidence of sale — sufficient when no other proof is offered. It is open to disproof from every source. It may be explained by attendant circumstances. The party delivering is not estopped by the fact of delivery. * * * The fact of delivery is deemed sufficient, if not explained by the circumstances accompanying the delivery, or if the inference, is not negatived by disproof.’ State v. Hurley, 54 Me. 562.”
In State v. Kingsley, 108 Mo. 135, it was held that section 1 of the act of 1891 (Laws of 1891, p. 159), which provides that every person who shall obtain board or lodging by means of any trick or deception, false or fraudulent representation, and shall fail or refuse to pay therefor, shall be held to have obtained the same with intent to cheat and defraud, and shall be deemed guilty of a misdemeanor, is not in conflict with the constitution of the state, upon the ground that it denies to the accused a trial by jury; that under the act, it is left to the triers of fact to determine whether the board was obtained by means of false and fraudulent representations and not paid for, and the legislature had the power to declare these facts, when proved, to constitute evidence of an intent to cheat and defraud.
In Board of Commissioners v. Merchant, 103 N. Y. 143, the court says: “The general power of the legislature to prescribe rules of evidence and methods of
It was only about one month from the date of the deposit until defendant’s bank failed and closed its doors. This of itself had a strong tendency to show that the bank was in failing circumstances, if not in fact insolvent, at the time the deposit was received, and the law which makes its failure so recently thereafter prima facie evidence of knowledge upon the part of its officers that it was insolvent or in failing circumstances at that time, is neither unjust nor unconstitutional. As a banker, it was defendant’s business to know the financial condition of his bank at any and at all times. The statute has direct connection with, and reference to, those who own and operate banks, and does not embrace within its provisions, any person not connected therewith. Here the act 'which makes the failure of any private bank prima facie evidence of the knowledge on the part of the owner, agent or manager of any private bank or
Receiving the money on deposit, knowing that the bank was in failing circumstances or insolvent, was in itself unlawful, the proof of excuse or justification for which, was on the defendant and if he fail to excuse or justify himself, the law implies a criminal intent. State v. Patterson, 116 Mo. 513, and authorities cited; State v. McCance, 110 Mo. 398. The burden of proof is not really changed. The statute enables the state to make a prima facie case by proof of the deposit and failure of the bank. But the defendant can show the circumstances attending the failure, and any facts tending to exonerate him from liability, and then on the whole case, the burden still rests on the prosecution to establish his guilt beyond a reasonable doubt. People v. Gannon, supra. The presumption of innocence with which defendant is clothed, and which never shifts, rests with him throughout _ and notwithstanding the prima facie case made out by the state, it must still go
It is a well known rule of common law, that when one person uses upon another, at some vital part, a deadly weapon, the law presumes the intent is to kill, and that the possession of stolen property recently after its theft raises a presumption that the person in whose possession it is found is the thief. Why then may not the legislature pass a law making a certain state of facts connected with what is declared by statute to be a criminal offense, prima facie evidence of the truth thereof $ We are unable to see why it can not do so, nor has any good reason been suggested to us, why it may not be done. We therefore think there ’was no error committed in giving the instruction.
We come now to the consideration of the only remaining question for determination, which is the action of the court in overruling defendant’s motion for a postponement of the trial because of the fact that he was at the time of the trial of this, cause under conviction and sentence in the same court for a felony, a similar offense to the one for which he was convicted in this ease.
From the time of the conviction and sentence of defendant in the first case he was in legal contemplation in a custody different from that of the circuit court, and could not be put upon his trial in another case until he had served out his time for which he had been sentenced in the first, or until the judgment and sentence in the first case had been set aside or reversed; until then it is to be deemed of full force and effect.
In Ex parte Meyers, 44 Mo. 282, the court says: “The courts in this state have no common law jurisdiction in felonies, and the powers that they exercise are such as are conferred by statute only. * * * There is no provision anywhere made, that I have been able to
In State v. Connell, 49 Mo. 282, the court says: “The Meyers ease was decided upon the statute. The criminal court had sentenced the defendant at one term, and then held him in custody on another indictment and tried and sentenced him at a subsequent term, and he was sent up and imprisoned on both sentences. "We^ held that under the provisions of the statute the last conviction was wrong; that the law required that where there were two convictions they must both be obtained at the same term, and take place before the sentence is pronounced in either case.77 Ex parte Jackson, 96 Mo. 116.
In Ritter v. Democratic Press Company, 68 Mo. 459, the court, in speaking with reference to the effect of a judgment of conviction for felony which had been appealed from, says': “The subsequent reversal of that judgment by this court,, could not be anticipated by the circuit court.77
For these reasons we are constrained to hold that the court committed error in overruling defendant’s motion for a postponement of the trial and compelling him to go to trial while the judgment against him and the sentence in the first case remained in full force and effect. The judgment is reversed and cause remanded.