State v. Lively

SUPREME COURT OF MISSOURI, Lively. possession in defendant’s in fact a stolen automo- question alleged bile. It awas for tbe wbetber tbe and tbe same auto- jury two different automobiles one were ' question mobile. also for tbe wbetber de- satisfactorily possession fendant bad accounted for bis tbe Shannon it automobile, if was tbe Shannon automo- in a bile, manner consistent with bis innocence. If tbe satisfactorily found that defendant failed to ac- possession, right count for bis it bad tbe undoubted from unexplained possession such fact of property recently to infer stolen and to find that tbe defendant himself was tbe thief, as be was be.

We are authorized to interfere with tbe verdict by jury. judgment by returned tbe Tbe thereon the trial court is therefore All affirmed. concur.

THE Appellant. STATE v. IVO W. LIVELY, Two,

Division December 1925. Incorporated: Deposit: 1. INSOLVENT Receiving BANK: Private or (Sec. 3365, 1919), malting Information. Under the statute it R. S. larceny any private Banking for an officer of bank or institution company money deposit therein, knowing or trust to receive on it to wholly insolvent, information, be it immaterial whether charging charge offense, cashier of a certain bank with said also banking incorporated such institution was the laws private company, of this or was bank or trust where the proof directors, defendant is that the bank had a board of persons respectively president, vice-president certain were cashier, they report and that from time to made time under oath to relating the Commissioner of Finance to the business transactions bank, stating incorporated. therein it and condition Deposit: Receiving money -: Time Loan. 2. a bank on time issuing deposit amount, deposit,' and a certificate of time for the before, date, paid, interest four months and not to be money deposit meaning receiving within of the statute making larceny 1919) (Sec. for the R. S. cashier other officer a bank to receive a or other valuable thing that such insolvent after knows TERM, Vol. signed by deposit, tbe circumstances. A certificate of cashier, acknowledgment is a written receipt therein said cashier sum promises named, pay depositor, to his which the the or to to order, and is not be as a to considered mere loan. Assumption If, -: Instruction: of Fact:

3. Etc. An instruction you telling jury the “if find evidence that that and believe the Jamesport,. Missouri, Lively one Ivo W. was cashier of the of corporation duly organized Mis- a of the laws the State of Jamesport souri,” etc., not assume the Bank of a does that corporation. Knowledge Deposit: -: 4. of Instruction Broader than at Time telling jury Statute. An instruction the that if the defendant receiving money deposit of and “at time the of said cashier knowledge check had of the fact that said Bank of circumstances,” etc., is not broader than the insolvent or in (Sec. 3365, 1919) declaring S.R. that the cashier or other statute guilty money larceny or who receives other of a bank of .officer knowledge thing deposit shall on “after he have valuable banking in fail- such institution ... is insolvent or fact that ing If he the officer knows at time receives circumstances.” insolvent, reception deposit its bank is after ac- that knowledge. length possessed quisition time he such deposit knowledge receiving consequence; prior to is of no it consciousness, deposit, he at the moment receives the is his depositors, peril criminal. that makes the act to pertaining -: Debts and Assets. An --: instruction to 5. insolvency tells the its “demands are all the bank’s -firms, banks, corporations persons, by owing or other to sums money deposited it, for with borrowed or either for whether deposit subject deposit checks, or on but in certificates time owing by capital for it to its stockholders as such its the amount any, against surplus, be considered should not as debt stock objectionable, particularly bank,” instruc- so where is not expected pay that a bank is not tell them for defendant tions provide pay owes, every be but must able to for debt it once at they due the usual course business. fall in its debts Reports. Bank Examiner’s In Evidence: the trial of a -: 6. receiving money banking in a defendant insolvent, reports knew it was made under he after institution during years deputy by three to the Bank Commissioner oath failure, showing its preceding condition how its business by conducted, being furnished defendant based data presence his and sworn officers its other directors them, in evidence. admissible are him and SUPREME COURT OF MISSOURI, Presumption 7.INSOLVENT BANK: Failure Prima-Facie Proof: of In- proviso (Sec. 3365, nocence: Instructions. The to the Statute R. S. 1919) declaring banking the failure a institution “shall prima-facie part” evidence of the re- on the of its officer ceiving that “the same was insolvent or money” received, circumstances when the was so is a constitutional law, presumption and is not inconsistent with the of innocence with trial, throughout which the law surrounds his and the giving accurately present court does err instructions which meaning proviso presumption to the in- nocence. Legislative Presumption -: -: Rule: Modification Applicability. power modify Swarens Case: The courts have no a constitutional rule of evidence the General established As- sembly. Swarens, The fact 294 Mo. and other cases, possession recently goods this court decided that stolen presumption only guilt, guilt, is not a but evidence of did not modify alter, ground statutory modifying, .and is no rule prima-facie the failure of “shall be evi- knowledge” receiving money deposit dence of the officer on failing “was that the bank insolvent or in circumstances” when the Legislature authority was so received. The has to establish rights guaranteed a rule evidence which not does conflict with Constitution, doing may and in alter so it rules of evi- they previous statutes, existed at law dence as common or under evidence, prima-facie that to declare certain facts constitute authority modify statutory rule; and courts have no a valid but authority modify evidence, a courts do have common-law rule of pertaining presumption innocence, even a rule to a where such does modification not conflict constitutional inhibitions. Receipt Deposit: Lapse -: Failure after of Time 9. before (Sec. 3365, 1919) Failure: Causal Connection. The statute R. S. say long deposit by how is does not after received on a bank- place ing the failure of the bank shall take order to prima-facie failure evidence of make such insolvency; require but it officer of does the bank of-the condition at the time the is be in a received. There a causal connection between condition and the must be failure, subsequent that condition does not result in failure causes, subsequent good fact defense. is due to but Incorporation: Proof. Proof the bank of which de- 10.-: corps including officers, pres- cashier had a full fendant directors, clerks, ident, cashier it made board - incorporated reports of Finance as an Commissioner to the banking institution, proof as a transacted business and that Vol. OCTOBER TERM, 1925. 417 private company, it was not a bank or a trust but an incor- porated bank; and under the circumstances of this case the de- guilty violating statute, by receiving money fendant clearly failing, insolvent, after he knew it was in a if not an condition, incorporated whether institution was or not. Corpus Juris-Cye. Banking, X, 204, Banks References: 7 C. Section p. 580, 28; 582, 31; 205, p. p. 582, p. New; 43; 583, n. n. n. 84; Section n. 208, 584, 74; p. p. 210, 584, p. 74; 585, Section n. n. Section n. Section 334, 15, 16, 646, Law, p. X, 285, p. 823, Constitutional n. 36. 12 C. Section n. X, Law, 1530, p. 745, 28; Criminal 20. 16 C. Section n. Section 16; 2331, p. 952, 2478, p. 1038, 76; p. 2493, 1050, n. Section n. Section n. p. 56, 3331, X,C. Section n. Appeal Livingston Circuit Court.—Nora. Arch B. Judge.

Davis, Affirmed. Ashby appellant.

Davis & (1) originally (Laws Section 3365 as enacted 1877, 239) p. apply only presidents, was intended to direc- managers, incorporated tors, cashiers or other officers private purview and a bank is within hanks there- Kelsey, (a) of. 89 Mo. 623. Nor did said originally apply section as enacted to officers aof trust company though company even such trust exercised the (b) Reed, functions of bank. State v. Mo. 43. page said section But amended Laws agents, managers owners, so as to include private section banks and said was reenacted in 1895 (Laws p. 158) and made to include officers of trust companies later enactment and the is still the law and provisions incorporated within its officers includes incorporated companies the trust officers of banks, and agents managers private and of owners, banks. State (c) 273 Mo. 341. is v. shown from Munroe, foregoing banking three that at least different kinds of brought purview are within the of institutions Section prosecution facts of this are 3365, but the that the rec- tending contain evidence not one word of ord does Jamesport prove incorpor- that the Bank of was ever reputed incorporated or that it was or ated Sup. 311 Mo. —27.

418 OP COUBT MISSOURI, SUPBEME

State v. corporation, it exercised of a ever functions any organized, nor is there evidence that it ever respect. wholly proof in its in and the failed State Washington, 335; v. Henschel, State v. 259 Mo. State (2) 263; Duddrear, 250 Mo. 274 360. S. W. separate 3365 there are four Under Section distinct (a) of offense defined as follows: classes to receive (b). deposit money reception a or assent to the of thing or other in such bank or insti- valuable company (c) institution, tution or trust to create or (d) any or or assent to the creation of debt indebted- or reason ness indebted- in consideration money thing ness shall be into received valuable is event, such bank either while said bank insolvent Defendant is circumstances. receiving deposit in the information the same was insolvent while and the evidence circumstances, whereas, on behalf shows that the check and was loaned State deposit” for four bank on “certificate of months per at four and there was a variance between cent, proof. allegations information and State Sattley, 485; 244; 131 v. 134 Mo. Wells, v. Mo. State 143; 199 v. Willner, S. W. State Bowman, v. State Burgess, (3) 268. A W. Mo. 407. bank v. S. ordinary an debt, is different from this, subject very constantly it nature is from its always depositor, payable and on demand. check of Bep. Legrand, Peoples v. Bank of Wilkesbarre Am. W. Braden, v. 37 S. When 126; Houston 467. mingled deposited general in a bank and is with property thereby funds becomes creditor arises between the debtor the relation depositor. . Pate, 432. 268 Mo. depositor ordinary to a bank is that The relation of The relation creditor. between creditors debtor corporation contract, is that trust. (4) Kroeger 274 S. Grarkie, State’s because it that the erroneous assumes Instruction 419 TERM, Yol. 1925.

' Lively. organized corporation Jamesport duly Bank of awas proof under the of the State of Missouri without laws require jury and to that thereof, also fails to find Bank, Lively the said of said Ivo W. was cashier Jamesport, deposit in at the time he received the question, and also it instruction that is assumed said Lively the said time he received the Ivo at the de- knowledge' posit and said check Jamesport insolvent fact said Bank circumstances, said instruction also being erroneous because than Section broader predicated R. S. which the information is only requires jury find he had to knowledge failing- or in said bank was insolvent deposit, circumstances at the he time received- said provides whereas, the said statute that he must have received the after he shall- have had the fact that said of or in was insolvent ¡ circumstances. State v. Helton,- Mo..- Ferguson, (5) v. 321 Mo. 524. State’s In- misleading prejudicial struction 9 is erroneous, referring defendant in to the demands said meaning foregoing bank within instruction, whereas, demands is word used other instruction and the demands said bank are not (cid:127) equivalent meaning do not have the same as' ' comprehensive. debts, but is more The essence ‘aóf legal liability part person páy debt is on the of -one to. liability at some time, another is en- by judicial forceable action. v. Kidd Cereal Puritana App. (a) Co., Said Mo. Instruction 9 is also misleading erroneous, conflicts with in- defendant’s defining “.insolvency” one struction numbered “failing (b) circumstances.” Said(cid:127) Instruction 9 is misleading erroneous, and conflicts in- with defendant’s ought three, numbered struction instruction have referred to the demands-of “¡demand” day (c) the said made.- A requisition request -particular--thing do a 'to OF MISSOURI, COURT SUPREME right specified, on the a claim person request. making Ins. Co. Penn Mutual Insolvency (d) under the statute 101 Tex. 553. Maner, relating inability receiving an to to of a is the against ordinary in the usual the the bank meet demands ordinary and instructions to business, and course of App. approved. Mo. Orcutt, effect are Eads v. 79 that 511. objected (6) to the admission in Defendant objection should of 46 and 48. Said 44, evidence exhibits purported exhibits to as said have been sustained Deputy reports the Finance made Commissioner years for the 1921 Finance the State Commissioner of no evidence that the contents and there was reports the defendant de- known to the were reports whatever, of fendant reports statements, contained recommendations and said che officers of said Bank and criticisms prejudicing jury inflaming the the minds against defendant. Lay, P.

Henry amicus curiae. destroys (1) 8 it error because Instruction is presumption the defendant innocence which is proof by requiring the burden reverses clothed, and against presumption instructed him. rebut the him to Hogan, 252 139; 294 Mo. State v. Swarens, v. Mo. State (a) Andrews, 297 Mo. 287. Prima-facie v. 387; State simply proof en- of a state of facts which evidence" Cyc. go jury. to the 31 State v. case titles the Evidently proviso to Sec- 169 Mo. 579. Hardeline, legislative simply direction submit 3365 tion the case proof upon facts; certain it can- to the a direction to as how be construed it would doubtless be they so construed decide; will unconstitutional, complained (b) the instruction While in a approved court number of cases, this been has objections considered, were not and all raised here in the decision Swarens case. before cases were these Vol. OCTOBER TEEM, 1925.

This received instruction the fullest discussion Sattley, Buck, Mo. Mo. An examination of cases show these will upheld because it is both cases the instruction is larceny principle cases, similar to the instruction unexplained being approved, proof then of recent gives pre- possession property rise to the stolen possession sumption it is found that the one in whose analogy Upon the court sustained is the thief. ap- giving later cases instruction, authority proved upon largely of these cases. As the cases decisions Buck Sattley expressly been over- cases were based have Hogan Swarens, ruled and Andrews cases, following many of course the later them, cases Sattley gone. (2) authority Buck and cases extremely preju- erroneous, 8 Instruction fact to further reason that it dicial the defendant for the It as- assumed the existence of controverted facts. it the existence the failure the assumes bank; sumes of an that the defendant of bank and assumes was the admitted facts were the these bank; officer of none'of by 794; 234 W. Johnson, S. State defendant. The 403. Potts, State 239 Mo. 526; Mo. v. Mills, v. 272 nothing; the he took stand neither admitted insufficiency standing upon any the evidence, nor offered evidence This offered the of evidence State. very unsatisfactory lacking as to the incor- or either was insolvency poration condition bank, Cer- connection with it. defendant’s tainly be to either admitted facts cannot these assumption their and the of existence uncontroverted, (3) very serious error. Instruc- instruction is this it fails define erroneous tion 8 is also Strong, 548; v. 153 Mo. “failure.” State word v. State Skaggs, 581; McLain, 159 159 310. Mo. Mo. earnestly most insisted this lack of definition It is injurious only error, but most the defendant. is not 422 OF SUPREME COURT MISSOURI, v.

State Attorney-General, respondent; Robert Otto, for Claud counsel. E. Curtis '

(1) properly The court overruled defendant’s de- incorporation proof murrer. The Jamesport necessary. not An officer of deposits receives after knows institution wlm he organization guilty be- circumstances larceny. Although R. sec. 1919, S. 3365. the information incorporated, Bank of yet proof incorporation lack of is not error since Sattley, bank is not material the case. State v. Decker, 131 v.- 483; Mo. State Mo. State 217 v. 320; Tracy, 294 389; Mo. v. 230 S. State Martin, 695; Mo. R. (2) court sec. 3907. The did not error commit giving 8 effect Instruction to the the failure of prima-facie bank was evidence of defendant’s insolvency August Sattley, of its v. State 131 492; Buck, Mo. v. 120 State Mo. 479; R. S. 1919 sec. Burlingame, (3) 3365; State v. 146 Mo. 214. Instruction 5'given by No. court the State assumption error because an Almost of facts. approved identical instructions have been in cases cited. Burlingame, Sattley, v. State Mo. 214; State v. (4) Mo. court Darrah, Mo. 527. by giving committed no error to the Instruction they in which were told that demands owing corpora- were all it to other sums banks, firms, persons tions or whether borrowed, or for money deposited either it, with on time certificates of deposit subject deposit or on Sattley, to check. State v. (a) deposit 131 Mo. 464. A certificate of is a written ac- knowledgment money of that has been received as a de- posit some bank or banker which the bank depositor. promises pay banker p. 7 J.C. see. 334, (b) deposit A 646. time certificate of comes within the provisions p. of Sec. 3365, R. 1919. L. S. 3 R. O. sec. 123, Sattley, L. 125, note; 31 R. A. v. 496; State 131 Mo. 464 by (5) admitting The court no error in evi- committed TERM, Yol. reports made of

dence the as to the condition evidence is admissible State bank examiners. Such (6) No Mo. 529. Salmon, a this kind case. v. of State overruling defend- error was committed the court no ant’s There fatal variance demurrer.

proof. Sattley, 464; Booth, v. 131 Mo. State 466; S. 216 Mo. R. Salmon, S. W. State scec. 3365. Prosecuting February

RAILEY, C. On the' 4, 1924, County, Attorney filed Missouri, of Daviess against county de- information circuit of an court The case was submitted two counts. fendant, jury caption, count, without under the second which, jurat, signature and reads follows: Prosecuting Attorney Leopard, within “Dean H. county Missouri, for Daviess, in the of and of pf and and under complaint Mary oath office affidavit his hereto attached herewith Schuler, and day of court 9th informs the about filed, August, County 1923, at said of Daviess and State Lively, being one then and there Missouri, Ive W. Jamesport, Jamesport, Missouri, cashier Bank of of existing duly organized corporation and laws being Missouri, the same. State of doing in said certain State, business money thing, other valuable the sum to-wit, twenty money in lawful cents, ten dollars and check certain $10.20, value of and a States, United admin- drawn J. $389.80, Cole, the sum of W. upon the Cole, of the estate of "Willis deceased, istrator Spring payable Hill, Missouri, Bank of Farmers description Mary of which said a further check Schuler, attorney prosecuting unknown, is to this value property being total $389.80, being the dollars, four. hundred value of unlawfully Mary property Schuler, one of. feloniously receive did have and take, Jamesport, he, Ivo after the said Bank of in said Lively, well knew fact, there insolvent then and said Bank of SUPREME OF MISSOURI, COURT Lively. failing circumstance, and in so and the said W. Ive Lively money thing and valuable aforesaid and above of the value of four hundred described, dollars, property Mary and and of the said in manner Schuler, feloniously unlawfully form did aforesaid, steal, and did carry away, contrary take and statute to the form against peace provided, in such case made and and ’’ dignity State. change granted A of venue defendant on account was alleged prejudice of the inhabitants Daviess County, cause the Circuit and the was transferred to Livingston County, Court of Defendant and tried there. arraigned April plea of was entered a 1924, and guilty. April On 8, .1924,the before.whom following cause tried, verdict: was returned guilty “We find the defendant his in the second count of the information assess punishment years’ imprisonment at two the State ’’ penitentiary.

Timely motions for a new trial arrest judgment were filed overruled. allocution Thereafter, granted, judgment pronounced sentence rendered, conformity appeal verdict, and an allowed defendant to this court.

The defendant offered no evidence, but stood his demurrer to the evidence of State. sub- evidence on the of the State shows

stantially August following facts: That on or about Lively, was, 9,1923, defendant, Ivo cashier of W. the Bank Jamesport, County, located in Daviess Missouri; prior he had been cashier of said bank for sometime August Harry date; above one Schuler deposited in said check in the amount of $389.80 in cash, $10.20 was received bearing defendant; certificate, time interest payment promising in four months, taken as evidence deposit; property of this that said check was the representing wife, Schuler’s- her of her father’s share signed by Administrator; and was estate, J. Cole, TERM, 1925. Yol. deposited by behalf Sehnler above by her; endorsed that

of check was wife, his and said repaid, said of no because was ever in the loans made all bank’s that failure; defendant and also transacted business connection with said bank, Bank in the First connection with made from State loans Jamesport that City, of to Kansas, bank; Kansas said of Jamesport said Bank First Bank of owed the State City, First State Bank Kansas, $9,000; Kansas said bought fifty-five of about thousand dollars’ worth Jamesport, were upon out. of heretofore set It is based Sec- information tion Revised Statutes which reads as follows: any president, manager, or director, cashier, “If any banking institution, other officer or the a- owner, of manager any private banking gent or of bank or institu- president, vice-president, secretary, treasur- or the tion, any company agent or of trust or institution er, director doing in shall State, business receive or assent to the reception any deposit money of of or other valuable banking thing bank in such or institution com- or trust any pany or institution or such owner or officer, agent banking any or institution, of such bank or if vice-president, president, secretary, treasurer, director company agent of or ate trust or shall cre- institution, such any or assent the creation of debts or indebtedness, any in consideration or reason of indebtedness money property valuable shall be into such received or company banking bank or or trust or institution insti- (have) knowledge after he shall of fact tution, company banking or insti- such institution or trust any private tution, of bank, or owner or owners such or in he be circumstances, insolvent shall guilty larceny, deemed thereof conviction punished be extent shall in manner and to the same TERM, Yol. stealing provided by law amount of

as is for the same deposited, thing: Provided, or valuable that the banking any such or trust failure bank or prima-facie company be or institution shall evidence of any person such or on the officer in was insolvent or when the same circumstances deposit.” property on was received or directly face in- information does not or directly charge private as cashier of a defendant, any charge guilty of nor offense, does that, company, guilty any trust he was of an cashier of as charge does terms defendant, offense. banking August of a 9, 1923, was institution do- cashier According ing etc. Missouri, con- business our wholly ception above it is immaterial whether law, Jamesport incorporated under laws doing whether it was business or Missouri, private.bank than as a com- the State other trust any pany any charter. The record is devoid of without Jamesport testimony tending that the Bank of show respect acting private bank com- as trust was pany. hand, evidence discloses that the On other directors, had a board cashier Bank of employees person such other defendant, expected incorporated the State would an have. on cross-examination defendant, for of Miss Counsel bookkeeper the Bank Goodwin, James- Roberta port, testify that the letterheads of had her said'bank president, Lively, I. C. Hill Ivo W. that was disclosed Rayburn Lois cashier, that Roberta Goodwin and and further cashiers. This witness testified, were assistant Mr. that defendant, Hill, cross-examination Mr. on Lively, McBrown, Arnold, Mr. Mr. Mr. Gates and Mr. bank; were the directors of said that DeVorss McBrown place. appeared resigned, Gates took his and from testimony of this and witness, other witnesses, that the. the president vice-president

directors, cashier-and reports bank, under made time to oath, said time to OF MISSOURI, COURT SUPREME regard Finance in to the business Commissioner said and condition of was fin- transactions ally over the Commissioner of Finance taken (cid:127)liquidation. opinion, are of the that the We informa- and sufficient both form substance; tion is as to that evidence there was substantial shown abundant, legally could from which the find that State prior August 9, 1923, Bank of duly on was incorporated the laws of if it were Missouri, necessary during period fact, to show said was doing business in said State. charged refusing

II. The court is with error to the evidence sustain defendant’s demurrer at con alleged for the “reason that clusion of defend case, receiving information ant a de-

posit Jamesport, in the Bank of when said bank tailing insolvent and m circumstances.. DepositorLoan? evidence behalf of the whereas, the money Mary Schuler,' the check and showed prosecuting loaned to bank on a witness, ‘cer- per deposit’ months for four at four cent in- tificate created an that said loan indebtedness of terest, deposit therein.” was not a bank and respect Turning to the evidence this matter Harry testified in Schuler chief find, as follows: we deposited four “Q. You hundred there dollars August sir. ? Yes, A. the 9th you making acting For whom were “Q. de- my posit? For wife.” A. (cid:127) follows: also testified as' He you give money? check To whom did “Q. Lively Mr. himself.” A. deposit signed by certificate Plarry Schuler, reads follows:

delivered Jamesport, deposit, No. Bank of “Certificate August Jamesport, four hundred Missouri, dol- Mary Schuler this bank four lars. has payable hundred to the order of herself dollars, four TERM, 1925. Vol. Lively. per at four with interest from date, date

months after properly per return of certificate annum on the cent one interest after certificate hears no This endorsed. subject year not to check. from date and is

“Ivo Lively.” entry to the record turned Miss Roberta Goodwin Mary showing deposit credit of to the $400 objection, as follows: Schuler, testified, without you entry August find do Now, what “Q. Mary respect deposit by Schuler? made there deposit of with time . There is her credit . . “A. $400. entry Leopard): or- (By And that

“Q. Mr. bookkeeping dinary of business and course and usual deposited four A. That had would indicate what? she on that hundred dollars date. A. A time certifi- received

“Q. And for what? deposit.” cate by proposition appellant It is contended

III. brief, there variance between the his was a two allegations proof. the information and opinion above

We are of the that the contention is here with- the record. defendant not sustained objection countervailing any evidence, and without out testimony. having think the been to above made We justified fully finding from the evidence were person August and as cash- on 9, 1923, defendant, deposit Bank received from the Schulers ier, equivalent, which its $400 period deposit four was to remain as a time being a- out, months without checked pay rate of four interest at the bank was mount the per per the-certificate words, annum. In other cent recognizes Schuler, delivered Jamesport, Mary owed that the face, Schuler deposit, she was receive reason of the $400 per per leave annum and thereon at four cent interest checking out four months without portion bank had It is evident of same. SUPREME COURT OF MISSOURI, . brought failed, and suit been six after months upon the transaction, above the refusal bank to Mary against honor Schuler’s cheek said the cause fund, properly upon of action would have been based the de posit upon as evidence of and indebtedness, not the agreement pay to interest thereon for months. four Draper, [Paul v. 158 Mo. l. c. 200 and cited'; cases State p. c. Salmon, Mo. l. R. 146, 516; 3 C. L. sec. p. 646.] 7 C. J. sec. 334, Ruling supra, 3In Law,- 146, section Case is said:

n “A deposit thing bank a has been said to be the depositor. the from sums the received The mere fact agrees pay deposited money that the bank to interest on n does prevent deposit being from a transaction as ’’ distinguished from loan. a Corpus page In 7 Juris, section it is as- deposit that: serted “A certificate of is a written ac- knowledgment by receipt bank or banker of the of a money deposit prom- sum of which or banker pay depositor, to ises bearer, the order of depositor, person to some other or to his order.” considering question Without above further, we justified finding hold that the case were August Harry that on the evidence 9,1923, Schuler, deposited agent wife, for of his with the Bank James- port money property and value and that $400, money for defendant, said as cashier received said property deposit Mary and Schuler. giving

IV. court is error in the with of Instruction reads as follows: 5,

“If find and believe from the evidence day August, County about, <onor 9th at the Lively one Ivo Daviess, Missouri, there then cashier Bank of James- and ption Assum corporation port, duly organized Missouri, Facts. the State of under the Missouri and laws doing same was a business you if further find from the evidence and State, in said TERM, Yol. Lively unlawfully Ivo W. then and there did said feloniously receive on Bank of James-

and in said port, certain sum of three Missouri, check for the eighty-nine eighty cents, hundred and drawn dollars Cole, estate Willis J. W. administrator of the Cole, Springhill, Mis the Farmers Bank deceased, Mary together payable money Schuler, souri, of. twenty cents, amount of ten dollars and money check were then and there of the value said you being if dollars, of four hundred so find, Mary you property of said Schuler, so Lively time that the said Ivo W. at the of re find, and ceiving knowl check had edge of fact that Bank of was in you failing solvent or in find from the circumstances, you then find the was, evidence guilty it should defendant that in the second count of the informa as ’’ tion. appellant is assaulted instruction several This respects, criticisms of same will considered in his named. the order

(a) It is the above instruction erronous said Jamesport the Bank of was a assumes that because it organized corporation duly under the State laws of proof thereof. The most casual without read- Missouri clearly supra, ing in full in- out instruction, said set supported by contention is not the above dicates language The commencement of said instruc- used. clearly “If” word indicated that tion with the use true, complained to be not assumed were matters the. jury, appear by and be found so must but case, etc. evidence

(b) did not re- It that the instruction is claimed was cashier quire of said find that deposit made. we have What the time said bank at equal (a) applies sub-proposition just force above contention. to the

(c) instruction assumed that said asserted, of said he received time defendant at the SUPREME COURT OF MISSOURI, y. Lively. knowledge and check had of the fact failing bank was insolvent and in condition. This con- tention, like the other two mentioned, is untenable and without merit.

(d) It is asserted that said instruction is broader than Section 3365, Revised Statutes required only to find that defend Broader knowledge ant had that said bank in statute, than failing solvent or in circumstances at the deposit, he pro time received said whereas, the statute he must vides that have received the after he knowledge shall have had of the fact that said Bank of Jamesport was insolvent or in circumstances. favorably impressed are not

We with this conten tion. If defendant had “at the time of re ceiving deposit,” alleged in said instruction, that was insolvent or in cir proceeded he cumstances, should have no further, and deposit. declined to receive the The above contention is slightest accordingly without merit. We hold that properly said Instruction 5 declared the law and is not legal subject Burlingame, [State criticism. 146 Mo. 214.] l. c. Complaint respect

Y. is made with to Instruction given by court, which reads as follows: “You are instructed that the demands the bank meaning foregoing within the instruction are all owing by corporations, it other banks, sums to firms, or

persons borrowing, money whether for or for deposited it, with either on time certifi Assets and deposit, subject cates or on to cheeks; Debts. owing but amount the bank to its stock capital surplus any, holders as such for its stock if against not be considered as a debt should the bank meaning foregoing within the instructions.” opinion We are the above instruction, “borrowing” using outside of the clerical error in for ' TERM, Vol. properly applied

“borrowed,” states the law to as ease. gave the instance of also The court at 1)2 1)3, relating

three instructions marked Dl, to subject, which read as follows: same ‘‘ bank in Dl. A is insolvent or circumstances pay to it is unable debts when, cause, its in expected ordinary business. or usual course of not pay every debt owes, be at once to it but it must to able provide they pay able to its debts fall due ‘Insolvency,’ of business. or a ‘fail- in the usual course ordinary acceptance ing condition,’ in of the term, inability applied means to meet bank, when to liabil- in course business. ities the usual The “D2. court instructs consider- Jamesport, ing of the Bank of on the 9th the condition August, day you will not take into account the capital dollars stock said bank, fifteen thousand fifty surplus dollars of said the two thousand and thereof. as liabilities require State does not The law of this

“D3. depositors; all to retain hand its on expected pay every able to be at once debt nor is it provide required pay only or to for the owes, but they payment usual fall course of them as du$ you the evidence that find from If, therefore, business. day August, Bank of James- 1923, said the 9th pay, possessed port within a reason- assets sufficient agencies, through its own liabilities time, able all of circum- insolvent or said bank was then you you so find should ac- date, stances quit the defendant:” each other are consistent

These instructions re- was needed in gave all law no error spect The committed court to above matter. giving numbered nine. instruction admitting with error

VI. court Deputy Finance reports made evidence the Sup. 3X1 Mo. —38. COURT OF SUPREME MISSOURI, Lively.

Commissioner to the State Finance Commissioner for years 1920, 1921 and 1922. It is insisted Examiner’s tending that there was no evidence offered Reports. reports that the contents show said were the latter defendant, had known to knowl reports edge alleged whatever. said It is also reports contained statements and criticisms of said Jamesport, Bank of which inflamed officers jurors- against prejudiced the minds of the the defend ant.

Considering objections these in the order named, appellant contending in error we counsel for are think appellant no as to the had contents appears reports. record that Exhibit report State, was the evidence of A. 44, offered in Lowry, made to Examiner, B. Commis stating the condition of the Bank Finance, sioner report Jamesport desig 1921. In said it was on June 28, incorporated bank, then followed as an therein a nated propounded questions to defendant and the series bank, their answers made un officers other showing bank, the -condition of said and how its oath, der affidavit made a conducted. The business signed and sworn to W. L. Arn Exhibit Lively, vice-president; cashier; Ivo W. W. L. Arn old, Lively, Lockridge, C. S. J. W. DeVorss Ivo W. old, Lowry testimony A. B. The de shows that directors. investigation present when the above fendant was furnishing the data for Exhibit assisted made, oath. 44, report the Bank Examiner

Exhibit 48 was Jamesport August Bank of condition of as to general report make-up similar face that the 44. It shows on its officersof the to Exhibit furnished the Bank Examiner the Bank of showing and the business the condition data transacting, etc. data, been This the officers questions sworn answers, was form of Lively, vice-president, cashier, Ivo H. Nulf, Jacob TERM, 1925. Yol. Lively, S. Lockridge C. and W.

Jacob Ivo W. Nulf, H. directors. Arnold, L. only present defendant not when the bank

The was sapra, in exhibits and 48 bat examined as shown actively reports. famishing in for assisted data said in think there snbstantial evidence the record

We is present tending that defendant was to when the show, Bank of the of the varioas examinations condition Jamesport being eondncted, that he famished, were said in- with the other officers of in connection relating to condition and its formation clearly ap- foregoing, management. Aside pears only cashier said hank, that the active loans basiness bat he looked after the manager of said institation. jary we think the

In were view foregoing, present jastified finding fally that defendant was when were made and assisted examinations of his bank these reports. famishing for said the data reports, 44, 47, 46 and were exhibits When these objection only made thereto is evidence, offered in as follows: objects to the intro- Ashby: The defendant “Me. 46 and beeaase re- exhibits, 44,

daction of the by reports they ports made that are examiners show Finance, to the Commissioner that no evidence the defendant had there is knowledge show reports. There is the contents present, showing or that he was evidence no presented reports him, and for were or examined binding they are not on defendant.” reason be that no made comments will observed objected pointed when the re- were oat examiners objection, ports as made, were offered in evidence. stated. heretofore for the reasons antenable provides that: Revised Section Statates daty be of the bank commissioner to care- “It shall reports papers pertaining fnlly preserve all records, department.” to his OF MISSOURI, COURT SUPREME purpose of use,

'The this law is to maintain public reports necessity, made eases record financial condition of from time to- time banks they may in order taken over the State, found to be insolvent or in a condition. These reports important, tracing financial are likewise condition conduct of the man banks, and the acts and agers they receiving thereof, are when deposit, knowing at the bank the time that [State or in circumstances. ex rel. insolvent Cox, Salmon, 268 S. l. c. Mo. l. c. tending 530.] nothing There the record show reports absolutely every accurate in were not objection respect. The made to the introduction of said reports been to be without merit. The above accordingly shown has assignment error overruled. is appellant, by counsel for

VII. It is now insisted given court, erroneous. that Instruction is This 8, afterthought, an contention to have been as the seems original presented no brief such An issue. ^ Prima- Facie assignment error, however, additional has Evidence. respect to above been filed matter, dis- Lay, printed Henry brief of Hon. P. as cussed 8 reads as Said Instruction follows: curiae. amicus that the failure “The court instructs of the prima-facie banking in this case is institution evidence part knowledge on the defendant that the same August on and in circumstances was insolvent prima-facie 9, 1923. The court instructs degree probability that raises such evidence is such prevail it must unless it be rebutted.” in its favor may it order that be considered with Instruction In print given supra, D5, we herewith Instruction at the appellant, on behalf of which reads as fol- instance and lows : presumption

“You are instructed that of inno- which the defendánt surrounded the law cence with protects case, him in notwithstand- surrounds this prima- ing may have fact established a TEEM, OCTOBEB Yol. given the instructions heretofore defined in

facie ease as you, continuously remains with the State burden and the the State to establish cause, devolves this guilt beyond a notwith- doubt, reasonable defendant’s prima-facie all standing if under So such case. rea- there still circumstances in evidence facts and you guilt, your should mind to his sonable doubt in as acquit him.” concluding part of Section Eevised Instruction 8 based, Statutes '

reads follows: any such the failure bank or “Provided, company trust shall institution or prima-facie evidence of person that the same was insolvent or in such officer or property when the circumstances deposit.” received on proviso been force the last has

The above thirty years, contained in the Eevised Statutes present law enacted of 1879 and 1889 before 158). p. (Laws 1895, in 1895 following, c. Mo. l. 487 and Buck,

In Division, this an able in behalf of J., Burgess, constitutionality of the above review exhaustive proviso, validity of an instruction numbered given eight one numbered similar to three, Judge page On Burgess the same. cause, sustained inconsistency clearly between there is no indicates given supra, on behalf of and D-5 defend 8 Instruction ant. Sattley, following, 131 l. c. 492 and Mo.

In validity Judge re-affirmed the of Instruction 8 Gantt proviso upheld supra, 3365, in Section Eevised Statutes Judge _ Darrah, 522, v. 152 Mo. In State Brace, judges speaking banc, en all court ap- except Sherwood, absent, J., who concurred, giving proved 8 Instructions in substance supra. D5

438 OF COURT MISSOURI, SUPREME y. Lively.

State Judge In State v. 216 Salmon, Mo. l. c. 524-5, Fox, representing validity this Division, sustained given 8, Instruction in this case. Lay, page

In the of Mr. at it is said: three, brief (No. 8) “This instruction” “in identical or similar language, eight has been before court in some cases, expressly by necessary in each case been has in- approved by ference, this cout.” He then calls our Supreme rulings attention to the Court in State Hogan, v. 139; v. Swarens, Mo. State 252 S. W. 387, and Mo. Andrews, v. 287, State claims that they, legal eight effect, overturn the eases above mentioned.

In all three the above cases this court was con- sidering procedure the rules evidence and principles. common-law None the cases cited appellant gone holding have to the extent of Legislature provision cannot enact like at conclusion of Section Revised Statutes 3365, 1919. On contrary, our several of decisions men- heretofore expess approved tioned have terms the constitution- ality including proviso, said Section their rulings respect approval. in that meet with our Legislature legal right, the-

We hold government, a co-ordinate branch the state police power, pass exercise of Section 3365, Re proviso. including [Hicks Statutes vised said v. c. Simonsen, Tallo, 270 W. l. S. 274 S. W. 468-9.] Legislature having l. c. been vested with the right legally enact constitutional in Section logically cluding proviso, follows said that Instruc language Eight, proviso, based on the tion can question rulings be called under the Swarens cases case, and other cited. extending this

Without discussion further, we hold supra, including proviso, that Section is valid. properly hold, that further Instruction 8 We declared fairly presented law, the issues before TERM, Vol. Lively. ap- given Instruction in behalf of D5, connection

in pellant. ques- fully have considered all the law VIII. We briefly presented in conclusion will case, and tions relating outstanding facts merits consider the opinion the controversy. clearly of are We Facts record, in this that, jury the facts disclosed Case. justified finding* therefrom in were August 1923, when defendant received the Jamesport only controversy, a practical pur- for all but time, at condition appears poses record, It insolvent. August 22, 1923, Exhibit that on from the State’s Jamesport meeting, a called had at of the Bank officers present: following officers of said were which the Terry, Lockridge, A. L. C. S. W. DeVorss, L. S. Arnold, president W. L. Arnold was and Ivo W.

meeting, pur- that it was called and announced pose a closing “on account run on the bank, ’’ pay. unanimously It and insufficient funds bank, meeting, that the bank should be at declared decided department posted the state notified. a notice closed, appears the evidence the case that defend- from all charge all the bank’s practically business, had ant apparently himself. In conducted it to suit short, finding jury that on warranted the evidence August prior had full 9, 1923, defendant a if condition bank was then in the fact that said convincing evidence in There is clear and not insolvent. tending Bank of record to show that including president, corps direc- a officers, full private not a that it was cashier, clerks; tors, reporting company; that it was nor was it trust incorporated bank, as an Finance Commissioner of transacting banking; business as circumstances, such would of Missouri. Under charge against guilty, sustained the evidence COURT OF SUPREME MISSOURI, Lively. incorporated whether said him, [State or not. 627-8.] Mo. l. Buck, 108 c. We have the examined instructions, and find that they properly are fair to defendant and declared all the necessary’for passing law that was the to have in upon the merits the case. The case was well tried appellant court and counsel. We find no error of which legally respect complain rulings can to the during progress court of the trial. The defendant upon guilty has been found substantial after evidence, impartial a fair and trial. judgment Higbee, accordingly below is affirmed. concurs.

.,C foregoing opinion PER CURIAM: The of Railey, adopted opinion isC., as the of the court.' All of the judges separate opinion; concur. White, J., concurs in opinions. Walker, P. J., concur in J., Blair, both (concurring). WHITE, J. concur on every point —I opinion decided in the case, written by Railey, C. as there are However, a number of cases now under questions submission in are involved similar presented those here, it is not amiss to consider more fully alleged some of the errors.

Under the statute, Section 3365, Revised Statutes receiving money 1919, the offense here is that of deposit, of a cashier, etc., bank, Knowledge at Time. knowledge “after he shall have of the fact

that such ... is in- solvent or circumstances.” Appellant error, claims Instruction 5 was because it required finding only knowledge that the defendant had bank, etc., of deposits condition of the at the time said requires

were received; whereas, the statute deposit he should have received a he had such after knowledge. argument This is based formal and inaccuracy language real instruction TERM, Yol. compared with the statute. The statute

when does not require knowledge, receiving which the officer any length deposits him had come to had, of time be- receiving deposit. fore the would act of not mat- was a month before or an instant ter before. whether If time he received the he had such at the knowl- reception acquisition edge, after knowledge. possession His must have prior acquired moment. It been is his conscious- receiving deposit, at the moment he is ness, depositor, peril which makes to the the act criminal. The every statute intended to cover case which an offi- cer of such an institution receives a when he likely he it, at knows, the time receives that it is to be lost. Objection argued by 8

II. Instruction the That amicus curiae. instruction told that the prima- failure of this case is part knowledge facie evidence of and in that the same was insolvent at the time the circumstances Prima-Facie Evidence: Presumption. language almost received. of the proviso Revised Statutes Section repeatedly ap- has instruction been same proved by counsel admits. The statute court, this as prima-facie providing evi- such a failure shall be knowledge counsel constitutional, con- dence of argues held. But he since been so cede that it has Swarens, 294 of State v. Mo. in the case decision import, the instruction cases and other similar held case court bad. In the Swarens be held should goods pre- recently possession a was not stolen merely sumption guilt, evidence to but was be con- precedent jury, overruling by an old as sidered by long line And for similar rea- of decisions. shown precedent argued it is we should overrule where sons approved instruction, an of this court have decisions objected to here. as the one such SUPREME COURT OP MISSOURI, Legislature

Counsel overlooks fact that the has authority long to establish rule of evidence so as such rights guaranteed by rule does not conflict with may doing and in so it Constitution, alter evi rules of they previous by dence existed common law at [12 statute. C. J. 823; Potello, v. 119 Pac. l. c. City Salmon, Mo. l. c. 525; of St. Joseph 437.] Legislature Farrell, Mo. The au has thority proof to declare that of certain facts or circum prima-facie' stances shall constitute evidence of other may facts which be inferred. as that Such, instance, special prima-facie tax bill shall be evidence of the lia bility of the owner therein for named the amount of the may precedent bill. This court overrule a established interpretation its own of the decisions common law as it did in it the Swarens case. But cannot re peal Legislature. authority act of the an We had say in the case Swarens the old rule should no longer supported legislative followed. It Legislature possession act. If had declared that the prima-facie presumption there considered authorized a guilt, we have been would bound it. proviso say long- to Section 3365 does not how reception after the failure of the bank place prima-facie shall take to make order it evidence requires on the but officer; that the bank a shall be condition at the time subsequent any the received, and a failure at prima-facie time thereafter will be evidence of part on the bank course, the official. Of there must be a causal connection between condition at the subsequent time the failure.. If that condition did subsequent result in failure, causes, but was due to good that fact a would be defense. III. It is further claimed the amicus curiae “failure” word as used argued Instruction 8 have should jury been defined. be It is should told TERM, Vol. 1925.

State v. Baumann. insolvency, or mere a failure a whether means Insolvency. closing of the doors of the banks that a bank yet may perfectly solvent and have to close. experience jury no trouble ascertain- could meaning

ing instance, in this because four- of failure days received the board teen after the prop- suspended its business and its directors placed erty Finance in the hands of the. Commission- liquidation. going- er of It ceased to be a Missouri for time, showed, the evidence at concern, far assets. From the evidence liabilities exceeded its was meant could not misunderstand what insolvency closing There its doors failure. was both purpose liquidation for assets. The perfect against made a and the defendant, out case judgment properly All affirmed. concur. Appellant.

THE BAUMANN, STATE v. MYRA Two, Division December 1925. Revolving revolving CONCEALED

1. WEAPON: Pistol: A Unloaded. pistol upon firearm, is a and a firearm carried and concealed person deadly weapon dangerous about is a 1919) felony (Sec. 3275, of the statute makes it a R. S. danger- any person carry person upon “to or about his a concealed deadly weapon any description;” kind or and where de- ous or having revolving pistol her fendant was concealed on convicted conviction, person, necessary, it was not in order to sustain the charge pistol was loaded. either or to show that proper permit -: Evidence: Hostile Witness: Cause. 2. carrying weapons being concealed to show that tried for unfriendly her, prosecuting as an witnesses are hostile and credibility, affecting their but cause of their fact ultimate hostility prejudice issue in the case. is immaterial Intentionally. “wilfully” in- -: Instruction: The word means requiring tentionally, to find that de- an instruction n revolving pistol “wilfully” her concealed carried fendant notes from of notes the Bank signed Jamesport over bank; without recourse on the up de- all the taken with collections and renewals were Jamesport Lively, in- fendant the cashier of the signers after the the that sometime notes; stead of of given sev- to First $9,000 note was the Bank State of nine- was made lieu the en-thousand-dollar note proceeds of the seven- note; thousand-dollar the placed deposit, in thousand-dollar note the First were Jamesport, Bank the credit of State to the Bank of with understanding up the the to left to there, be take checking eventually, note and it was not considered as a deposit; customary keep that it for a de- bank posit corresponding bank; its that for reason with required Jamesport the to check Bank the at First State bank seven-thousand-dollar account. The State offered evidence the records made the State Finance Jamesport Department condition of Bank of closing. previous Several notes sometime its of On were shown these worthless. records day August, just days after the 23rd fourteen question was made to the above First State suspended Jamesport its business Bank, property its order of board assets directors, placed charge of the Finance were Commissioner day liquidation. of Missouri for On 9th August, loans of the bank were $216,000, appears from the $236,000. were the liabilities COURT OF MISSOURI, SUPREME Special Deputy testimony Commis- Mettle, of Oliver charge Jamesport, who had sioner for the Bank opinion that in his hank, hooks and records the Bank of lost about on account $100,000 paper. C. Martin, bad A. connected with the State Department, present when Finance testified he was Jamesport, Bank of of directors board present, discussing advisability of were attempting business; that defendant to continue no the bank offered no dissent and made claim that not insolvent. important, may Such other matters as be deemed opinion. will be considered in the Defendant I. was convicted the second count

Case Details

Case Name: State v. Lively

Court Name: Supreme Court of Missouri

Date Published: Dec 22, 1925

Citation: 279 S.W. 76

Court Abbreviation: Mo.