State v. Taylor

64 So. 740 | Miss. | 1914

Smith, C. J.,

delivered the opinion of the court.

Appellee was indicted for receiving into a bank of which he was president money on deposit, the bank then being to Ms knowledge insolvent. The indictment was demurred to, and, the demurrer having been sustained, the state appeals.

The demurrer was evidently sustained under the construction put upon the statute in State v. Traylor, 100 Miss. 544, 56 So. 521. That case, however, was overruled by State v. Rawles, 60 So. 782, decided since this judgment was rendered in the court below, and appellee does not now insist upon that ground of deemurrer.

One of the reasons why, in appellee’s' opinion, the demurrer should be sustained is: “The word ‘dollars’ is not a sufficient description of the property deposited.” The allegation describing the deposit is in the following language: “Received from T. J. McDonald a deposit in said Iuka branch of said institution of seventy-five dollars,” etc. The contention is that the indictment should have stated “whether the deposit consisted of money or of some other species of property, and, if of the latter,what kind of property.” There is no merit in this contention, for to say that a person received' seventy-five dollars, without more, indicates ex vi termini that he received seventy-five dollars in money.-

Counsel for appellee also argue that this allegation is defective, in that it does not state the kind and character of the money deposited; that -is, whether it was coin, bank bills, treasury notes, etc., and the denominations thereof. It may be conceded that the crime here charged is somewhat analogous to the crimes of larceny and embezzlement, and that at common law the money stolen or embezzled must have been described with the particularity here desired. This rule, however, in so far as it applies to larceny and embezzlement, has been changed by our statute. Section 1436, Code of 1906. The rule seems never to have had any foundation in reason, or,, if it did have, the reason has long since ceased to exist, as pointed out in Baggett v. State, 69 Miss. 625, 13 So. 816; therefore the rule itself no longer exists. “Gessante ratione legis, cessat ipsa lex.”

Another objection to the indictment is that it does not allege that in receiving the deposit appellee “was then and there acting as president, or otherwise as the representative or agent of the bank in receiving a deposit.” The indictment, after alleging that appellee was president of the bank and setting forth the business in which the bank was engaged, proceeds: “And the said Jno. W. Taylor, president aforesaid, knowing and having good reason to believe said institution, and the luka branch thereof, to be insolvent, did unlawfully, knowingly, and feloniously receive from T. J. McDonald a deposit in said luka branch of said institution, of seventy-five dollars,” etc. From this allegation, it manifestly appears that in receiving the deposit he was acting as agent or representative of the bank.

We have not overlooked the case of State v. Wistandley, 154 Ind. 443; 57 N. E. 109, cited by counsel for ap-pellee, which holds otherwise; but we decline to follow it.

Reversed and remanded.