State v. Traylor, 56 So. 521

56 So. 521 | Miss. | 1911

Lead Opinion

McLain, J.,

delivered the opinion of the court.

At the May term, 19091, of the circuit court of Simpson county, the appellee was indicted under section 1169 of the Code of 1906, wherein lie was charged with a violation of this statute on the 7th day of July, 1908. The appellee demurred to the indictment, assigning several causes of demurrer. The demurrer was sustained and the defendant discharged. From this judgment the state appeals, and assigns as error the sustaining of the demurrer to the indictment. .

Section 1169 of the Code of 1906, under which the defendant was indicted, reads as follows: “If the president, manager, cashier, teller, assistant, clerk, or other employee or agent of any bank or broker’s office or establishment conducting the business of receiving on deposit the money or other valuable things of *such’ persons, shall remove or secrete or conceal the assets or effects of such establishment for the purpose of defrauding any of the creditors of the establishment, or shall receive any deposit, knowing or having good reason to believe the establishment to be insolvent, without in-' forming the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five years.” The indictment reads as follows: “That on the 7th day of April, 1908, and for a long time prior thereto, the Bank of D ’Lo was a hanking establishment and institution under the laws of the state of Mississippi, and was domiciled in the town of D ’Lo, Simpson county, Mississippi; that on said 7th day of July, 1908, and for a long time prior thereto, the said Bank of D’Lo was conducting the business of receiving on deposit the money and other valuable things of ‘other’ persons; that on said date the said Bank of D’Lo was insolvent, and that at said time, and for a long time prior thereto, E. B. Traylor was cashier of said bank at D’Lo, and said E. B. Traylor, on said 7th day of July, 1908, then and there knew that the said Bank of D’Lo was insolvent; that on the said 7th day of July, 1908, in the county and state aforesaid, the said E. B. Traylor, the cashier of said Bank of D’Lo, then and there being engaged in the business of receiving deposits of money and other valuable things of ‘other’ persons and being then and there insolvent, did then and there, as cashier of said Bank of D’Lo, knowing the said bank to be then and there insolvent, knowingly, willfully, intentionally, fraudulently, and feloniously receive, as cashier aforesaid, from A. B. Francis, on deposit in said Bank of D’Lo, the sum of forty-eight dollars, etc., said money being the property of said A. B. Francis, as depositor in said Bank of D’Lo, and the said Traylor, etc., failed to inform the depositor Francis of the condition of said bank, ’ ’ etc. The second count in the indictment is the same as the first, except that it charges that the defendant had good and sufficient reason to believe the said Bank of D’Lo was then and there insolvent, and that he failed and neglected to inform the depositor of the condition of the bank.

The fourth ground of the demurrer-to this indictment is as follows: “The said supposed indictment does not charge the said bank was conducting the business of receiving on deposit the money or other valuable things of ‘such persons’ as the president, manager, cashier, teller, assistant, clerk, o.r other employee or agent of any bank or broker’s office or establishment, but instead charges that the bank was engaged in the business of receiving money or other valuable things of ‘other persons.’ ” It is clear, from the reading of section 1169, that the statute creates two different offenses. The first 'is, “ shall remove, or secrete, or conceal the assets or effects of such establishment for the purpose of defrauding any of the creditors of the establishment;” second, “for receiving any deposit, knowing or having good reason to believe the establishment to be insolvent.” The indictment in this ease is on the second offense described, to wit, receiving of a deposit.

It is perfectly competent, in fact, necessary, in order that we may properly understand what the legislature meant by this section, not only to look at the present law, but also at the law which was in existence prior to the enactment of this statute. The crime sought to be punished was not a crime at common law; upon the other hand, it is purely statutory. The law is first found in section 2814 of the Code of 1880, and was brought forward in the Code of 1892 as section 1089. Section 1089 is a rescript of 2814. The statute, as it existed prior to the adoption of the Code of 1906, provided that if the president, manager, etc., of any bank or broker’s office, or establishment conducting the business of receiving the money or other valuable things of “other” persons on deposit, etc.; whereas the Code of 1906, under which appellee was indicted, provides that£ £ conducting the business of receiving on deposit the money or other valuable things of ‘such’ persons” shall receive on deposit, etc. The question therefore arises: What did the legislature mean by using the word “such” in the present statute, instead of the word “other” in the former statute? In order to ascertain this, it is necessarjq as said above, not only to look at the former law, but also to see what construction the old law had at the time of the adoption by the legislature of the new statute.

In State v. Walker, 88 Miss. 596, 41 South. 8, decided in April, 1906, this court in construing this statute, held that: “The statute plainly says he shall be guilty of the crime while conducting the business named by the statute. ‘Conducting business’ is one of the necessary links in the chain of facts necessary to constitute the' crime. ’ ’

In other words, under this construction placed upon this statute by this court, it is not every one who receives a deposit knowing of the insolvent condition of the business engaged in, but he must be conducting the business “of any bank or broker’s office or establishment conducting the business of receiving on deposit the money or other valuable things of other persons.” It therefore follows that if A. is the president, cashier, clerk, or other employee of a mercantile establishment, the business of which is to buy and sell merchandise, and not to receive on deposit money or other valuable thing’s for its customers, A. will not be guilty of a crime if he receives on deposit money or other valuable things, although he may know the establishment in which he is employed is insolvent, and fails to inform the depositor of such condition. It is therefore manifest that the legislature intended solely to prohibit “banks or brokers’ offices or establishments, conducting the business of receiving on deposit the money or other valuable things of ‘such’ persons, from receiving the deposits when in an insolvent condition.” It therefore necessarily follows that, under the letter of the statute, the legislature created a well-defined crime. The statute, therefore, is not senseless nor meaningless, and the question arises: Have the courts the right to create a law the violation of which is a crime, or to say that the legislature intended to create a different crime from the one specified in the statute?

The court cannot create a law. Its sole power is to enforce the statute as written by the legislature. The court has no right to add anything to or take anything from a statute, where the meaning’ of the statute is clear. It is only .in cases where the statute is ambiguous that any rule for the determination or construction of statutes can be resorted to. The word “such” is not a synonym of the word “other.” It is difficult to conceive of where the words can be used interchangeably.

"W"e know of no rule of law which will justify the court in convicting a person of any crime, unless the offense comes under the letter of the statute. ■ The law is that criminal statutes must be strictly construed. Such has been the law from time immemorial.

In Harrington v. State, 54 Miss. 490, it is held by this court that an indictment under section 2489, Code 1871, for the alteration of the record, must charge that the alteration was “wittingly” done, and, if charged that it was “willingly,” is fatally defective; that, while it is not always necessary to follow the literal language of the act in framing indictments for statutory offenses, it is essential that either the same words, or words equivalent in meaning and synonymous, should be used. To the same effect are Roberts v. State, 55 Miss. 421; Richburger v. State, 90 Miss. 806, 44 South. 772; State v. Presley, 91 Miss. 377, 44 South. 827. In Monaghan v. State, 66 Miss. 513, 6 South. 241, 4 L. R. A. 800, this court held that “it will not yield for considerations of expediency, and supply by judicial construction what is palpably omitted from the statute.” And this court in State v. Richardson, 86 Miss. 439, 38 South. 497, held that a penal statute must be strictly construed. In Yerger v. State, 91 Miss. 802, 45 South. 849, it was held that, where the language of a statute is plain and unambiguous, the court cannot hold that the legislature meant something different from the true meaning of the terms used; and in Adams v. Saunders, 93 Miss. 520, 46 South. 960, this court said that the statute then under consideration was penal and must be strictly construed, and applies only where the conduct of the offender comes clearly within the terms of the law; and State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R. A. (N. S.) 340, et seq., holds that a state statute, the languag-e of which is plain, must be enforced as written, regardless of the evil to which it might lead, that “a state legislature is an absolute despot, its acts on all subjects being free from any restriction whatever not found in a state or federal Constitution, and that it is the duty of the courts to enforce the law as written by the legislature, and not what it (the court) may think should be the law.” This court in Stewart v. State, 95 Miss. 627, 49 South. 615, speaking through Mr. Justice Smith, construing this identical statute,. says: ‘ ‘ Penal statutes must be strictly construed, and the courts can neither add to no,r take from them.”

It has been said that it is not the words .of the law, but the internal sense of it, that makes the law, and our law, like all others, consists of two parts, namely, body and soul. The letter of the law is the body of the law, and the sense and the reason of the law is the soul of the law; and it often happens, when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is larger and more extensive. Therefore in the construction of criminal statutes, as has been said in Bishop on Statutory Crimes, section 230: “The doctrine is that, in favor of accused persons, criminal statutes may be either, according to the form of the provision, contracted or expanded by interpretation in their meanings, so as to exempt from punishment those who are not within their spirit and purpose, while at the same time, as the last section shows, and as explained in the last chapter, they can never he expanded against the accused, so as to bring within their penalties any person who is not within their letter. Otherwise expressed, whenever the thing done is not within the mischief evidently intended by the statute, though it is within its words, the doer is not punishable, while, on the other hand, one may defend himself by showing, if he ^can, that either the main part of the enactment or some exceptive clause thereof is so unguardedly worded as to-open an escape for him through the letter, his act being still a complete violation of its spirit.” Or, as stated by Hawkins (2 Hawk. P. C., chapter 18, section 16): “No parallel case which comes within the same mischief shall be construed to be within the purview of the statute, unless it can be brought within the meaning of the words. ’ * “In slightly different language, though a case of this sort is fully within the-mischief to be remedied, and is even of the same class and within the same reason as other cases enumerated in the statute, construction will not be permitted to bring it within the statute, unless it is also within the statutory words.” Bishop on Statutory Crimes, section 220, referring to numerous authorities.

The casual reader is apt to seize and emphasize that portion of the statute which says “shall receive any deposit,” and the statute does not specify from whom the deposit may be received, and hence it may be argued that the condemnation is directed against the receiving of any deposit from any one. It may be, and doubtless was, the intention of the legislature to prohibit the reception of any deposit from any one; but it is absolutely certain, from the reading of the statute, that the condemnation was directed, not simply to the receiving of deposits, but against the persons engaged in a certain business — that business being any bankers, brokers, etc., engaged in the business of receiving on deposit the money of such persons.

To hold this indictment good, it would be necessary to discard and ignore every known rule of grammar— the science which treats of the principles of languages, the study of the forms of speech, and their relations to one another. There is no way or method known to edu•cated man by which they can interpret human speech, •except by construing the words in their relation to one •another. Talleyrand, the greatest diplomat of Europe, at least in his day, said: “Words are vehicles by means ■of' which we conceal our thoughts.” This may be true in the diplomatic service, but it is not to be permitted •either in the legislative or judicial department of the government. If the legislature intended to cover the ■contention of the state in this case, it acted upon Talleyrand’s idea that words, instead of expressing, conceal ■one’s thoughts. The human fraud may use words for 'the purpose of concealing his thoughts, but the honest man uses only such words as express his intentions. We cannot fritter or pare away what was perfectly and intelligently expressed by the lawmaker, in order to effectuate what we may suppose was the legislative will.

It is insisted by the state that the use of the word “such” for “other” was a clerical error. But we do not know of any rule or principle which justifies us in so holding. It must be presumed that the legislature intended to say just exactly what it did say. As said above, the courts have no right to enact a law; but the -creation of a crime is exclusively with the legislature. It may be that the legislature in enacting this statute •did a very unwise thing — that it should make punishable the receiving, by the president, cashier, etc., of any bank •on deposit the money of my person, knowing the insolvency of the bank and without informing the depositor of its condition. In our judgment the statute should be amended so as to read, instead of “such” persons, “other” persons, thus making it unlawful for any one engaged in the banking business or brokers’ business 'to receive on deposit the money of other persons while the bank is insolvent, etc.

In conclusion, to put the case in a nutshell: The crime defined by the statute is that certain persons conducting-a certain business of receiving on deposit money of “such” persons, etc.; whereas, the indictment charges certain persons conducting a certain business of receiving on deposit money of “other” persons — clearly and manifestly a different offense. Affirmed.

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Dissenting Opinion

Smith, J.

(dissenting).

I am unable to concur in the conclusion reached by my brethren in this case. The only change made in bringing forward section 2418, Code .of 1880, into the Code of 1892, and from that Code into the Code of 1906' as section 1169, which section is the one upon which this prosecution is founded, is that the word “such” was substituted for the word “other” between the words “or” and “persons” in the fourth line thereof. Because of this substitution of the word “such” for “other,” which I think was manifestly a mere clerical error, appellant contends, first, that the only person who can commit this crime is an officer or agent of a bank, etc., engaged in receiving deposits from officers or agents of banks, etc., engaged in a like business, and, second, that in order for the crime to be committed the person making the deposit must be an officer o,r agent of a bank, etc., engaged in receiving deposits from officers or agents of banks, etc.

The first of these contentions my brethren have upheld ; but I am not sure, from the language of their opinion, whether they mean to uphold the second or not. This language is as follows: “It may be, and doubtless was, the intention of the legislature to prohibit the reception of a deposit from any one; but it is absolutely certain, from a reading of the statute, that the condemnation was directed, not simply to the receiving of deposits, but against the persons engaged in a certain business,” etc. When any statute is brought under review by the courts, the only duty they have to discharge is to ascertain the legislative intent, as contained therein, and to give effect thereto. When the language of the statute is plain and unambiguous, it is unnecessary to invoke any rule of construction, for in that event the statute itself is its own best interpreter. The first thing to be ascertained, therefore, is whether the language of the statute is ambiguous. That portion of the statute which describes the character of persons who can commit the crime defined, disconnected from the remainder of the statute, is plain and unambiguous; for the word “such,” so considered, plainly restricts the commission of the crime to agents and officers of banks, etc., engaged in receiving deposits from agents and officers of banks, etc., engaged in the like business. So, also, when so considered, is that portion of the statute which describes the character of persons for whose benefit the statute was passed; for by it all depositors, irrespective of the business in which they are engaged, are protected. The ambiguity arises when the statute is considered as a whole. When this is done, it becomes doubtful whether the legislature intended to protect all members of the general public in making deposits in any bank, etc., or all depositors in making deposits in banks, etc., provided such banks, etc., are engaged in receiving deposits from the officers and agents of other banks, etc., or only the officers and agents of banks, etc., in making deposits in other banks, etc., engaged in receiving* deposits from the general public, or only the officers and agents of banks, etc., in making deposits in banks, etc., receiving deposits only from such officers and agents. All but one of these constructions reduce the statute to an absurdity and make it of no practical value, a result which the legislature must not be presumed to have intended. 26 Amer. & Eng. Ency. Law (2d Ed.), 648.

In order, therefore, to ascertain the true legislative intent, it becomes necessary for us to examine the statute as it stood in the former Codes, and from this examination it becomes manifest that prior to the adoption of the Code of 1906 the statute was designed to protect all members of the general public in making’ deposits in any bank, etc., and that it had been on the statute books for such a length of time as to become a part of the settled policy of the state. This being true, unless the present language of the statute is plainly and unambiguously to the contrary, we must not presume that the legislature, in bringing it forward- into the Code of 1906, intended to alter it in such manner as to radically change this design and settled policy. Interpreted in this light, it seems to me that it is manifest that the legislative iutent as it appears in the Code of 1906 was to protect -all members of the general public in making deposits in any bank, etc. I am therefore of the opinion that the use of the word “such” was a mere clerical error, for which the word “other” should be read. Criminal statutes must be strictly construed, and the courts have no power to add to or take from them, or, for that matter, to add to or take from any other statute; but this does not mean that such statutes are to be construed with such technical strictness as to defeat the purpose of ascer taining the true meaning thereof. The rule is universal, so far as I am aware, that the true meaning of statutes, when ascertained, will be enforced by the courts, even to the extent of correcting errors in the language in which they are couched. “Legislative enactments are not, any more than other writings, to be defeated on account of mistakes or omissions, provided the intention of the legislature can be collected from the whole statute.” 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), 410. And “where it is manifest upon the face of an act that an error has been made in the use of words, the court may correct the error and read the statute as corrected, in order to give effect to the obvious intention of the legislature.” 26 Amer. & Eng. Ency. Law (2d Ed.), 653 to 655, inclusive; Earhart v. State, 67 Miss. 325, 7 South. 347; Bobo v. Commissioners, 92 Miss. 792, 46 South. 819; State v. Louisville & Nashville R. Co., 53 South. 454. Suggestion of error filed and overruled.