State v. Kelly

74 So. 325 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

This is an appeal by the state from a judgment of the circuit court of Attala county sustaining a demurrer to an indictment filed against Kelly for perjury. The indictment reads as follows:

“The grand jurors of the state of Mississippi, taken from the body of good and lawful men of said county, elected, impaneled, sworn, and charged to inquire in and for the county aforesaid, at the term aforesaid, of the court aforesaid, in the name and by the authority of the state of Mississippi, upon their oaths present that R. E. Kelly in said county, on the 23d day of October, A. D. 1913; being the assistant cashier of the C. C. Kelly Banking Company, a corporation legally chartered under the laws of the state of Mississippi, and doing a general banking business, and receiving the deposits of the money and other valuable things of other persons, domiciled in the city of Kosciusko, in said county and state, as aforesaid, and be, the said R. E. Kelly, in making a certain report to the auditor of public accounts of the state of Mississippi, as required by the laws' of the state of Mississippi, for said C. C. Kelly Banking Company, known as a balanced statement on a blank form furnished by said auditor of public accounts of the state of Mississippi as aforesaid, of the condition of the said C. C. Kelly Banking Company, and showing the resources and liabilities thereof and the amount of indebtedness to the said C. C. Kelly Banking Company which was owing to it by its directors, stockholders, and officers and then and there being duly sworn by E. L. Bay, a notary public in and for the city of Kosciusko in said county and state, who was then and there duly authorized to administer oaths; it thereupon became and was a material matter to be reported to the said auditor of public accounts in said statement, the amount of money owing to the said C. C. Kelly Banking Company, by the directors thereof, and to this the said B. E. Kelly, in said statement, before said E. L. Bay, notary public, as aforesaid, who was then and there duly authorized to administer oaths as aforesaid, then and there willfully, unlawfully, feloniously, corruptly, and knowingly, did make oath that there was owing to the said C. C. Kelly Banking Company, the sum of fifty-nine thousand, one hundred sixty-four dollars and twenty-four cents, whereas in truth and in fact, as the said B. E. Kelly then and there well knew, there was at that time owing to the said C. C. Kelly Banking Company, by its directors, a great deal more than the said sum of fifty-nine thousand and one hundred sixty-four dollars and twenty-four cents.

“And so the grand jurors, as aforesaid, upon their oaths as aforesaid, do say that the said B. E. Kelly, before the said E. L. Bay, notary public, as aforesaid, being sworn as aforesaid, and in manner and form as aforesaid, and by his own act and consent, falsely, willfully, unlawfully, and feloniously did commit willful and corrupt perjury contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi.”

The demurrer presents many separate grounds, bnt is in substance confined to about sis propositions:

First. The indictment is fatally defective because it fails to show that the auditor 'of public accounts made the requisition on the bank for the statement in question.

Second. That the indictment is fatally defective because it does not charge that the statement was rendered to the auditor of public accounts and does not charge that it was intended to be rendered to the auditor or that it ever passed from the custody of the defendant.

Third. The indictment fails to charge that the false oath was by affidavit or that it was in writing.

Fourth. That the indictment is bad because it fails to show wherein the oath or affidavit was false.

Fifth. The indictment does not charge with sufficient certainty that the auditor of public accounts demanded of the bank the statement as provided by law, nor does it charge in any way that the blank forms of such statement were furnished in duplicate by the auditor.

Sixth. The indictment is bad because it fails to charge that the defendant was an officer of the bank.

As to the first ground, the indictment charges that the perjury was committed by Kelly in making a certain report to the auditor of public accounts of the state of Mississippi, as required by the laws of the state of Mississippi. This statement is required by chapter 111 of the Laws of 1908, which reads, as far as is material to this inquiry, as follows: Every bank and every person, corporation, or association of persons receiving money on deposit, or buying, issuing, or selling exchange, or otherwise doing a banking business, shall make a balanced statement under oath of the owner, or one or more officers of the bank, to the auditor of public accounts, at least four times in each year, of the condition of the bank and the amount of indebtedness to the bank which is owing by its owners or stockholders, officers, and directors, on a blank form prescribed by the auditor in duplicate. And then provides that, after this statement is examined and found correct hy the auditor, it shall be published within ten days hy the bank in a newspaper published in the county. The allegation of the indictment that, in making a report to the auditor of public accounts of the state of Mississippi, as required by the laws of the state of Mississippi, necessarily means the report required by this act, and that carries with it an allegation that demand was properly made, etc. And it is not necessary to set out in detail the things that the auditor and the appellee did that were required hy the act.

In'reference to the second point made, the same portion of the indictment which charges that an affidavit was made in making a certain report to the auditor of public accounts for the state of Mississippi, as required by the laws of the state of Mississippi, is sufficient to charge that the report was made and delivered to the auditor.

The third ground,- that the indictment is fatal because it fails to charge that the alleged false oath was made by affidavit or in writing, is sufficiently charged in the indictment; the indictment charging that the report made to the auditor of public accounts “as required by the laws of the state of Mississippi” known as the “balanced bank statement” on a blank furnished hy the said auditor of public accounts and that he was then and there duly sworn, etc., and it thereupon became and was a material matter to be reported to the auditor of public accounts in said statement, shows that the oath' was made in said statement, which, under the law, was required to be in writing, and which, under the allegations of the indictment, was “made as required by the laws of the state of Mississippi.”

In regard to the fourth ground, “that the indictment is bad because it fails to show wherein the oath of the affidavit was false:” The indictment charges that it thereupon became and was a material matter to be reported, the amount of money owing to the said C. C. Kelly Banking Company by the directors thereof and to this the said K. E. Kelly in said statement before E. L. Kay, notary public, then and there willfully, unlawfully, feloni-ously, corruptly, and knowingly did make oath that there was owing to the said C. C. Kelly Banking Company the sum of fifty-nine thousand and one hundred sixty-four dollars and twenty-four cents, whereas in truth and in fact- the said R. E. Kelly then and there well knew there was at that timp (that is to say, at the time of making the affidavit) owing to the said C. C. Kelly Banking Company by its directors a great deal more than the sum of fifty-nine thousand and one hundred sixty-four dollars and twenty-four cents, and charging that the grand jury “do say that said R. E. Kelly, etc., in the manner and form aforesaid, by his own act and consent, falsely, willfully, unlawfully, and feloniously did commit willful and corrupt perjury,” etc. In other words, Kelly swore as charged in the indictment that the directors were owing the hank fifty-nine thousand and one hundred sixty-four dollars and twenty-four cents, when at the time he well knew that in truth and in fact the said directors in reality owed more, a great deal more, than the said sum. This plainly alleges that the affidavit was false in stating that the amount owed was fifty-nine thousand and one hundred sixty-four dollars and twenty-four cents, when in fact much more than that was really owing. It is manifest from the indictment that the affidavit alleged to be false said in the statement that the amount really owing by the directors was in the sum of fifty-nine thousand and one hundred sixty-four dollars and twenty-four cents, and that Kelly, knowing that this debt was much larger, deliberately, willfully, and corruptly swore it was a less- sum than it really was.

The fifth contention is covered by the allegation that the report made and sworn to was made to the auditor of public accounts as required by the laws of the state of Mississippi and known as the balanced statement on blanks furnished by the auditor of public accounts sufficiently charges that a demand was made by the auditor.

The sixth ground, that the indictment is bad because it fails to charge that the defendant was an officer of the bank is without merit. If an assistant cashier is not an officer, then what is he? He was discharging the functions imposed by the law upon an officer and was doing this on behalf of the bank, discharging the duty imposed upon the officers of the bank; and we think it manifest, that, if the bank was indicted for failure to make the report, it would not be subject to prosecution if its assistant cashier had made the report. An assistant cashier performs the duties of the cashier, and he does not do this as an employee of the cashier, but he does it because he has been elected to represent the bank itself in the discharge of those functions which ordinarily the cashier performs in small banks but is unable to do in the larger bank, or when, for any reason, the cashier cannot be at the bank during the banking-hours to perform this work. The indictment in this case is predicated under section 1318 of the Code of 1906, which reads as follows:

“Every person who shall willfully and corruptly swear, testify, or affirm falsely to any material matter under any oath, affirmation, or declaration legally administered in any matter, cause, or proceeding pending in any court of law or equity, or before any officer thereof, or in any case where an oath or affirmation is required by law or is necessary for the prosecution or defense of any private right or for the ends of public justice, or in any matter or proceeding before any tribunal or officer created by the Constitution, or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer, shall be guilty of perjury, and shall not thereafter be réceived as a witness to be sworn in any matter or cause whatever, until the judgment against him be reversed.”

Section 1434 of the Code provides that:

“In an indictment for perjury it shall he sufficient to set forth the substance of the offense charged upon the defendant — that he was sworn or testified on oath, and before what court, or before whom the oath or affirmation was taken; averring the court or person to have had competent authority to administer the same, together with proper averments to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, .either in law or equity and without setting forth the commission or authority of the court, or the commission or authority the person before whom the perjury was committed.”

We think the indictment was sufficient to charge the offense under our statutes, and that the judgment of the court below in sustaining the demurrer was reversible error, and the judgment will he reversed, and the cause remanded for further proceedings.

Reversed and remanded.