*1 proceedings in the trial or the record appearing, either No error Iligiee Davis, GC., concur. judgment affirmed. proper, the is opinion by TIenwood, foregoing C., PER CURIAM:—The judges All of concur. opinion court. adopted as Lloyd. (2d) S. 344. State, Appellant, v. M. W. 7 W. May 25, Two, 1928. Division *2 Gentry, Attorney-General, Janes, North T. and David P. As- Attorney-General, appellant'; Billings for V. sistant James of counsel. Zimmerman, Jones, Ely Ely
Orville L. B. & and B. A. McKay respondent. *4 DAVIS, During- term, 1926, jury grand the October of the C. County charging Dunklin returned defendant, an indictment a di- Savings Bank, 1925, rector of the Citizens on about 29, December making a with loan of the funds bank in said to defendant of ten centum the and of said bank without consent the of said than directors borrower, meeting the first a been obtained in board said upon and recorded Upon directors the minutes of said board. being court,- indictment prosecuting held insufficient at- torney and an substituted filed information. To an in- amended change in venue, formation filed the Stoddard Circuit Court on lodged defendant a quash, sustained, motion the court judgment appealing State from entered thereon. Omitting caption and signatures, the amended information reads: Prosecuting Billings, Attorney “James V. within and for the County Missouri, Dunklin, upon and State of his oath of office prosecuting upon attorney, appended oath, as such and his hereto knowledge, belief, and information his and informs the court charges Lloyd, King M. W. T. and Paul and S. Jones, W. late day county aforesaid, on about 29th A. D. December, 1925, since, County and at divers times at Dunklin, State aforesaid, being Savings Bank, directors of the Citizens corpora- a existing duly organized tion under laws of State of Mis- banking souri, being doing a institution the same business said County State, being banking a same institution then and $50,000, with and a $9500, there then and knowing M. Lloyd well that said W. there was then and there a Bank aforesaid, and an of said then officer did and there wilfully, knowingly, on or about December unlawfully, and feloniously loan of the make funds Savings said Citizens Bank, banking institution, to the said M. W. Lloyd, being same whereby obligation instrument a certain certain written of in- A created, promissory to-wit: payment debtedness was note for the promissory note money, to-wit: One dated December $10,000, Citizens favor-of the said the sum of due 1926, made, December delivered to executed Citizens Savings Lloyd W. M. Lloyd, being Bank of the said M. C. Savings payment Bank for the to the said Citizens of a certain sum *5 money note, $10,000 the sum of by of on said to-wit: as evidenced o£ instrument indebtedness created the said and heretofore men- aforesaid, being as tioned and described the same a total amount of aggregating of $4402.62, indebtedness the sum directly and indirect- ly Lloyd, M. AY. Savings to the said director said Citizens Bank per ten centum aforesaid, capital as excess of surplus and Savings Bank, of said Citizens without the consent then and there of said directors of the said Savings Bank, Citizens than M. borrower, Lloyd, said AY. aforesaid, director as meeting in a first been obtained said Board of Directors upon and made a matter of record the minutes of board, said which said had consent to be first obtained and a matter made up- of record on the minutes of said Board Savings Directors said Citizens made, Bank before such loan aforesaid was which and said consent thereto had not been and made a matter of obtained record minutes said Board Directors the said Bank as aforesaid be- foregoing said M. Lloyd, fore the loan was made to the AY. director particular description as of which aforesaid, more said note is unknown, being lost, misplaced, this Prosecutor said note returned, suit, Finance, filed for the Commissioner of held St. Louis security pledge loan Banks collateral made to the said Citizens Savings copy hereto Bank, attached, but a of the said note is and filed herewith, Lloyd M. AY. he, when the said was then and in- there Savings debted, directly indirectly, and the said Bank, Citizens doing banking aforesaid, County said institution as business said aforesaid, sum, namely, $352.62, and in a State was almost, nearly per of ten centum of the one-fifteenth and Savings Bank, said which said ten Citizens and was circumstances then and there under the stated aforesaid the borrowing power directly from indirectly limit his bank in said aforesaid, they, which he director as after M. was said AY. Lloyd, King, Jones, AY.S‘. T. Paul directors as had aforesaid, and knowledge Lloyd, of such fact and well knew that said M. AY. Savings Bank,
director of was then and said Citizen's there indebted Savings Bank in of $352.62, to the Citizens the sum said and existing M. Lloyd, the said indebtedness of the said AY. director as nearly aforesaid, was one-fifteenth centum of the and, they, Citizens after the said said King, Jones, AY. T. AY.S. Lloyd, M. Paul directors as aforesaid knowledge Savings Bank, had fact of the said Citizens foregoing taken, made, knew that loan well evidenced obligation pay- promissory said as aforesaid for aforesaid Savings' money Bank, M. ment of said Citizens Lloyd, AY. would aforesaid, director as increase the indebtedness of Bank, of said Lloyd, the said M. AY. to the said Citizens *6 Saving's sum, $10,352.62, per in a io-\vit: far in of Bank excess ten surplus capital and centum of the of said Citizens Lloyd, T. and, they, the said M. "W. Paul W. King, after S'. .and Jones, Savings aforesaid, of said Bank directors the Citizens as had knowledge foregoing, knew that of the fact and loan on well said promissory $10,000, Lloyd, of to M. note for the sum the said W. Savings by Bank aforesaid, director of said Citizens Bank would in an M. itself creates excess indebtedness of the said "W. Lloyd, sum, $10,352.62, of said in a to-wit: far in Bank, surplus excess of centum of of said Citizens Savings against dignity of Bank, peace State.” grounded upon 3420-5, page amended information is Section 190, 1925, 11740, 8, Laws Section Subdivision Revised Statutes 1925, 1919. 3420-5, page 190, Laws Section reads: “Any director, agent, employee any clerk or of bank officer, or willfully knowingly trust company makes or who concurs in making any loan, directly indirectly any individual, either or to corporation by by of partnership credit, or means or letters of ac- purchase ceptance by notes, or or of of drafts discount bills of ex- change obligation any person, partnership corpora- or or other of in in tion amounts set out Section 11740 and Section 11807, Chapter 1919, the Revised Statutes of shall be felony punished a conviction shall guilty by deemed be imprisonment years penitentiary (2) in the for not less than two years (10) by imprisonment county jail nor or in the more than ten year exceeding (1) by exceeding for not one or fine not five hun- imprisonment.” or fine and ($500), dred both such dollars Revised Statutes Section subdivision reads: employee of director, officer, “8. a bank of this State No clerk money any bank in permitted shall be to borrow of the employee director, officer, clerk or in excess of ten he is majority fund without the consent capital and borrower, than first other been directors of meeting board, said consent to be made matter obtained Provided, any officer, if loan made: such of record before the or control a employee shall own director, clerk corporation corporation a shall be con- any loan to stock of Every as a loan him. purpose of subdivision this sidered for the violating knowingly provisions this bank or thereof officer offense, forfeit the State the amount shall, for each subdivision lent.” ger- 1, Revised Statutes which is 11740, subdivision
Section raised, reads: mane to the issues provisions article: this subject
“A bank directly any “1. Shall not or indirectly individual, lend to part- nership, body corporation, politic, either means of letters of by acceptance of drafts or credit, purchase discount or notes, exchange obligations bills of or other individual, such partnership, politic corporation body an amount or aggregate amounts (15) per which will exceed fifteen centum the stock actual- ly paid in and such bank if *7 located in city having' fund a population over; or twenty (20) a one hundred thousand per capital actually paid in surplus centum of the stock fund such city having population if in a bank located a of less than one hun- thousand; twenty-five dred thousand and over seven (25) per actually paid centum of the stock in and fund of if in State, such bank located elsewhere with following ex- ’’ ceptions. exceptions 1, The a, b, c, d, six subdivision f, lettered e and re- spectively, impertinent resulting are issues involved, that it unnecessary them forth. to set question scope I. determinative The involves the of Section 3420- 5, page 1925, 190, Laws in its relation to 11740, Section Revised
Statutes 1919. The State bases the amended informa- asserting tion on Subdivision of Section 11740, that 8 yle comprehended mentioned subdivision is by Sec- view, denying tion 3420-5. takes The defendant the converse its in- gist making 3420-5 clusion. The of Section is the or in concurrence making any of an loan to or individual, partnership excess cor- poration a officer a bank. pith other The of Sub- 11740, division Section is the to record failure the consent of a given of the a meeting of the in bank, directors borrowing by board, director, to the a before loan in excess of per making made. ten centum is Section 3420-5 interdicts the of an partnership any individual, corporation. excess loan to On the hand, 8 not in Subdivision does interdict a loan excess ten merely centum, prescribes that, if such a loan per but is made with- recording provided therein, out the consent of directors as making of It is the an excess loan certain forfeit accrues. that Sec- proscribes. tion It is the failure to record the consent of the 3420-5 that Subdivision Section penalizes. directors to the loan “loan,” 3420-5, in in with as used Section term “excess” connection reasonably logically pith does not and cannot allude to the 11740, that Section of the failure record the con- Subdivision lack develops sent of the to the loan. Their context directors relativity.
244 contends, however,
II. Stale language The. that o£ Section 3420-5 includes the whole Section .11740. it But is evident that loan the excess Section 3420-5 interdicted refers to Subdivision 11740, for
of Section that subdivision alludes to and prohibits any loans to individual, partnership, cor- body politic, poration which will exceed certain per actually paid stock in centum and the fund depending population city in bank bank in is located. As the this case was located County, judicial county Dunklin we take notice that the does not city having population contain a thousand, thereby seven au- thorizing any twenty-five the bank to loan to individual per cent capital and surplus fund. Legislature
It is did not evident intend that S'ection 3420- 11740 as a If should include Section whole. it had intended to explicitly, appropriate Subdivision it would language, include scope 3420-5, of Section have extended so as to within its include to record the consent of terms failure directors to a loan to a bank cent. officer Relative to the intent of the *8 page law-making Cyc., says: 36 body, may “So a statute by adopt part specific a. all statute descriptive of another and thereto, and effect is the as if part reference same statute adopted adopting had written AVhere, thereof been into the statute. adopted is to however, merely statute referred words de- scribing character, only general pai-ts those it its of which are of a general particularly subject to nature, adopting relate incorporated statute, will into be construed the latter in the adopt act.” absence of clear intention whole Here the adopting particularly proscribed related statute to excess loans 1 only of Section 11740 portion 11740. Subdivision is the Section gravamen proscribes prohibi- excess loans. The thereof that proscription 8 loans, tion of Subdivision is not the excess but it meeting, the minutes a directors’ showing is the failure to record loan majority that a thereof consented to a director in excess the bank. cent of the a criminal It construed III. Section 3420-5 is statute. is be against liberally in favor of the accused. strictly State and ] Such 134 35 S. W. Krueger, v. Mo. [State 604. in enlarged by judicial may statutes not be extended specifically persons
terpretation embrace not so as to subject pro may to its No be made brought its terms. one within implication. visions 3420-5, Laws based on Section amended information is The specifical- 1919. Statutes It Revised and Subdivision Section of the Citizens with defendant, as ly charged of ten mailing loan to himself feloniously without first obtained capital and directors, recorded before the loan consent charge legislative basis, Legis- had no it is The was made. punish- an fix must offense and courts, that define
lature, not information It is evident the amended fails to therefor. ment offense, consequently it charge is insufficient. an judgment should be is affirmed. premises, In view of the Higbee Henwood, CG., concur. foregoing opinion by Davis, C., adopted
PER CURIAM:—The judges All opinion concur. as the of the court. (2d) Dameron, Appellant. S. W. 869. v. State Sam Two, May 25,
Division 1928. *9 appellant.
Lionel Dcuuis