273 Mo. 341 | Mo. | 1918
Defendant was tried in the circuit court of Jefferson County, upon an indictment charging him with having, as agent of a certain private bank, re
Such of the facts, as are necessary to an understanding of the points raised upon this appeal, run substantially thus: On and prior to the 9th day of April, 1915, one Otis M. Munroe, the father of defendant, was the owner of a private bank in the town of JDe Soto, known as the Jefferson County Bank. Defendant was and had been for some years employed in this bank, and had assumed the title of assistant cashier. The deposit, for the receipt of which defendant was convicted, was made on the 1st day of April, 1915, and consisted of a draft for the sum of $800, drawn by a building-and-loan association of Shreveport, Louisiana, upon a bank situate in the latter State. The above draft was on the date last mentioned deposited by Sol Hohenthal, to the credit of his sister, Gertrude Hohenthal.
At the time of the making of this deposit, but two persons were employed in this bank; namely, defendant, who seems to have been acting as receiving teller, and cashier, and one Harry Brown, who seems to have been the bookkeeper. The father of the defendant, who,. as' stated, was the owner of this bank, was at the time lying ill in a hospital in the city of St. Louis. This owner had been seriously ill for something more than a year, and had been unable during that entire period to lie in the bank or to give much personal attention to the affairs thereof; though the proof shows that in most instances wherein loans of any magnitude were sought to be made with the Jefferson County Bank, Otis M. Mun-roe, was constantly consulted and had the deciding voice; but the proof is abundant that defendant was in full charge of this bank in all other respects, and that he received deposits, paid out money to depositors, and made and passed on numerous small loans.
This bank continued in business without any overt financial difficulties until the said 9th day of April, 1915; on which date Otis M. Munroe died. Upon the death of
The indictment upon which this prosecution was bottomed is strenously assaulted, and it therefore becomes very pertinent in our discussion of the case. 0-mitting signature and merely formal parts, all of which are conventional, and none of which is attacked, this indictment read thus:
“The grand jurors of the State of Missouri, impaneled, sworn and charged to inquire within and for the County of Jefferson, and State aforesaid, upon their oath present and charge that Eobert B. Munroe, on the 1st day of April, 1915, at the County of Jefferson, in the State of Missouri, being then and there the agent and manager of a certain private banking institutioñ, known as the Jefferson County Bank, doing business at De Soto, in said county- and State, a certain deposit of money, to-wit, eight hundred dollars, in lawful money of the United States, the money and property of one Gertrude Hohenthal, of the value of eight hundred dollars, unlawfully and feloniously did take, have ajid receive*348 on deposit in said Jefferson County Bank, after he, the said Robert B. Munroe, had knowledge of the fact, and well knew that the said Jefferson County Bank was then and there insolvent and in failing circumstances, and so the said Robert B. Munroe, the money aforesaid, to-wit, eight hundred dollars, the money and property of the said Gertrude Hohenthal, in manner and form aforesaid, unlawfully and feloniously did steal, take and carry away; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”
Such other facts as shall become pertinent to the points which we find it necessary to discuss will be set out by us in connection with that discussion.
The section of the statutes (Sec. 4585, R. S. 1909) upon which this prosecution is bottomed was first enacted in 1877. [Laws 1877, p. 239.] It then made it larceny for “any president, director, manager, cashier, or other officer of any banking institution” to receive or consent to the receiving into such bank any- deposit of money or other valuable thing, after such officer or agent of the bank had knowledge of the insolvency of “such bank or banking institution.” In 1887, this statute was amended by inserting therein the words “or the owner, agent or manager or any private bank or banking institution.” [Laws 1887, p. 162.] This amendment was a legislative construction that the section prior to the amendment was not applicable to a private bank.
“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, or the president, vice-president, secretary, treasurer, director or agent of any trust company or institution doing business m 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 trust company or institution, or if any such officer, owner or agent of such bank or banking institution, or if any president, vice-president, secretary, treasurer, director or agent of such trust company or institution, shall create or assent to the creation of any debts or indebtedness, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution or trust company or institution, after he shall have had knowledge of the fact that such banking institution or trust company or institution, or the oivner 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 or trust company or 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.” [Sec. 4585, R. S. 1909; Laws 1895, p. 158.]
In the face of this language it is idle to contend that defendant can be convicted without charging in the indictment and without showing the fact by the evi
The case of State v. Salmon, 216 Mo. l. c. 525, is urged upon our attention as laying down a contrary rule. We think the two cases are easily to be distinguished. There the learned jurist who wrote the case was dealing with the proviso to the above-quoted section which, relating to a matter wholly evidentiary, makes the failure of any such bank or banking institution prima-facie evidence of the insolvency thereof. * In the Salmon case the bank had failed. In the case at bar, the Jefferson County Bank had been closed solely on account of the death of the owner thereof. Whether that owner was insolvent, ‘therefore became a matter of proof. There was no statutory presumption about it.
It is perhaps unfortunate that in a somewhat loose discussion of the point, Judge Fox followed, in the Salmon case, the older case of State v. Buck, 120 Mo. 479, which latter case was decided in 1894, before the present statute was amended so as to require that the insolvency of the “owner or owners” of a private bank at the time of receiving a deposit must be shown as a condition precedent to conviction. Judge Fox ruled that even in the case of a private bank, the fact of the failure thereof should (just as the letter of the statute provides) be held to be prima-facie proof that a private bank, as well as an incorporated bank, was insolvent when the deposit was received. Absent the fact of failure, as here, we apprehend no such ruling would have been made. Certainly, no such ruling would have been warranted.
No one can read our present statute upon' this subject without concluding that the indictment for receiving deposits into an insolvent private bank must charge that the owner or owners thereof were insolvent at the time of receiving such deposit. Likewise, the proof must show this fact, and the jury must be instructed to so find, before they are authorized to convict the accused. That the statute may authorize the triers of fact to pre
Many other matters are urged upon our attention, but since all such are things in which either there is no merit or things which will not happen upon a new trial, we need not take up space in discussing them.
For the errors noted, let the case be reversed and remanded for a new trial not inconsistent with what we have herein written.
It is so ordered.