State v. Tuller

| Conn. | Sep 15, 1867

Butler, J.

On the motion in arrest two points are made in relation to the sufficiency of the information, namely, first, that the crimes are alleged to have been committed “ on or about ” the fourth of September 1866, and therefore not with sufficient certainty, and second, that the era is not specified and the dates are in figures. Both of these objections were considered by Judge Church in Rawson v. The State, 19 Conn. R., 292, and holden untenable, and in that opinion the other judges concurred. The views there expressed meet our approval, and dispose of the points.

Another point made under the motion in arrest relates to the disqualification of the juror Sperry, because he had formed and expressed an opinion that the prisoner was guilty, before the trial, and before he was impaneled as a juror. The law is well settled that if a juror has formed and expressed an opinion, that the prisoner is guilty of the crime charged, prior to the trial, and that fact is unknown to the prisoner or his counsel until after verdict, the fact is good cause for arresting the judgment. That doctrine was recognized by this court in Smith v. Ward, 2 Root, 802, and by Judge Swift in the second volume of his Digest, page 415. The counsel of the prisoner are right therefore in respect to the law, but the questions arise, first," whether they are right as to the - fact, and second, whether their motion is sufficient.

The counsel for the prisoner did know that the panel was not indifferent because one of the jurors was biased, before the verdict, and while the jury were under the control of the court. Two claims are here made, neither of which is tenable. The first is that th$ counsel did not know the name, of the juror. That is immaterial. He was informed by a respectable member of the bar, in open court, that the panel was not indifferent, that one of them was biased, and would have been informed of the name of the juror on the instant if he had'desired it. A moment too would have sufficed to have brought the facts to the knowledge of the court; and on the request of the counsel for the prisoner, the court, on the statement of a respectable member of the bar, that one of the jurors had made such a statement to him personally, would have sent for the jury and taken the case from them without hesitation. The second claim is that if the counsel did know, but did not learn until after the jury had gone out to consider the verdict, he did not know during the trial, and was not bound to bring the matter to the attention of the court. This claim is entirely too technical. It is immaterial what expressions have been used by judges or text writers in relation to the closing of a trial, or in the statement of the doctrine under consideration. We must look at the substance of the thing; and that is, that if he knows of an objection to the panel before the verdict is rendered, and in time to prevent the verdict, and obtain a rehearing before another jury, and does not avail himself of the opportunity, he must be holden to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and that cannot be tolerated.

The case has been argued upon the assumption that the knowledge of the counsel was not the knowledge of the prisoner, but if that were true it would not aid the prisoner in this case ; for the counsel who received the information were managers of the case, and had authority to waive objections; and the motion would be defective, and the prisoner could take nothing by it, because it is not alleged that the counsel were ignorant of the objection to the jury.

It is further claimed that if counsel did know, the prisoner is not chargeable with their waiver, because the counsel had no power to waive the objection. This claim is not tenable. The prisoner, or his counsel for him, may waive any objection in a case not capital. The cases of McKay and Oancemi were capital ones and therefore, if law, are not in point. Eor these reasons the motion in arrest should be overruled.

Several important practical questions are raised upon the motion for a new trial and upon the eight requests to charge made by the defendant to the court. The import of the first, second, fifth, sixth, and eighth requests is, that the prisoner could not be convicted under the second count of the information. The claims involved in those requests are, first, that the information would not lie under the statute of this state, because that statute does not embrace tellers of national banking associations ; second, because the package was not the property of, or a deposit in the bank, within the meaning of that act; and third, that the court had no jurisdiction of such an offense, because the legislature had no constitutional right to apply it to a national bank. These claims we will consider in their order.

The first claim is not well founded. The statute is made to apply to all hanks incorporated by authority in the state. The language of the statute was originally of the state, and was changed by the revisers and General Assembly in 1866. These alterations and the general language of the first clause of the act, taken in connection with the particular language subsequently used, sufficiently show the intention of the legislature to embrace tellers in the national banks. Although termed banking associations in the act by which they are incorporated, they are created to do a banking business and are universally known as “banks,” and that is the name generally assumed by them in cases where they had previously existed under a state law and re-organized under the national law. Such is the name assumed by the institution in question, and such was the name applied to it by the counsel for the prisoner in their requests to the court. It is very clear then that the revisers and the legislature intended the statute to apply to tellers of the national banks doing business in the state.

The second claim is also without foundation. The property is not laid in the second count as the property of the bank; but as a special deposit by a third person, differing from money deposited on general account, intended by both parties to be mingled with the assets, of the bank and to become its property. These special deposits are very common, and that fact, and the language used, taken in connection with the provision in respect to the persons who may be defrauded, makes it very clear that the legislature intended to provide for just • such a case.

It seems equally clear that the third claim is untenable. It is undoubtedly true that the laws of Congress, if operative at all, are supreme and exclusive, and that offenses against them are not cognizable by the state courts. And it seems to be settled in this state by the case of Davison v. Champlin, 7 Conn. R., 244, and by high authority elsewhere, that Congress have no power to give the cotirts of the states criminal jurisdiction in respect to offenses against federal laws. It follows therefore that the legislature have no power to constitute such offenses cognizable by our courts. So far as they have attempted to do any such thing by the statute in question, the statute is inoperative. But a statute may be good and operative in part and in part inoperative.

Congress by the national currency act incorporated the bank in question as a bank, located within this state. They enacted all the provisions which were necessary to constitute it a corporation and give it being, and all of power or restraint that they deemed essential to regulate that being. They authorized it in general terms to do a banking business, but they did not undertake, by any regulation or restraint, to regulate that business; and they left that to be regulated by the laws of the state and land. They did enact in the 55th section of the currency act, that if any teller or other officer of the bank should embezzle the properly of the bank they should be punishable by fine and imprisonment. That provision goes to the being and internal working of the bank, and is intended to protect its property from its agents. It was not intended to regulate, and has not the effect of regulating, the business of the bank with its customers. Now the business of the bank is conducted within the jurisdiction of this state, with oür citizens, and in conformity to our laws, and it is competent for the legislature to pass any law affecting that business, or protect the bank or its customers in the conduct of that business by any penalty, and such law and penalty will not be predicated on any law or offense created by Congress, or have any relation or be repugnant to the currency act, or in any manner infringe the jurisdiction of Congress or the federal courts. It is theft by our law to steal from a national bank ; it is burglary to break into one for the purpose of stealing ; and it is cheating to obtain money from one by false pretenses. As a corporate being, located in the state, its property and interests and business are protected by state laws and subject to state legislation, and so it is competent for the legislature to protect its customers, the citizens of the state, in their business dealings with it, whatever they may be, whether constituting the relation of borrower and lender, or of special or general depositor and bailee; and they may be controlled and protected by penal enactments, without interference with the laws of Congress.

Such is the character of the statute in question. It is in part repugnant to the law of Congress, but it also protects a special depositor of the bank against the felonious or fraudulent appropriation of the deposit by the agents of the bank, who have access to it, and so far forth it-is not open to the objection urged.

The import of the third and fourth requests, if I correctly understand them, is that there could be no conviction under the first count for larceny, if the prisoner took the package entire and unbroken from the bank ; but it is not a case for the application of the principle claimed. It is not alleged, nor was it attempted to be proved, that the prisoner received the package, or that he was entrusted with it, or that he ever had any care or possession of it. All that is alleged or could be proved is, that he had access to the place of deposit. There being no trust, or possibility of the breach of trust, no possession nor custody, the technical rule in relation to the breaking of a package is entirely inapplicable. Moreover it appears without denial upon the motion that he did dispose of the contents in parchís, and must therefore have broken the package at some time.

The remaining request has relation to the supposed right of the prisoner to insist that the court shall direct the jury to find separately upon each count. The prisoner has no such right. He may ask the jury so to do, and may ask the court to request them to do so, but in relation to such request the court exercises a discretion, as it does in relation to putting the prosecutor to an election of counts, and the exercise of that discretion cannot be revised as matter of right on motion in error or for a new trial. Judge Buller, in the case of Young v. The King, 3 T. R., 106, in commenting upon the manner of trial where several offenses are charged in the same indictment, says: — “All these are mere matters of discretion, which judges exercise in order to give prisoners a fair trial, for when a verdict is given they are not the subject of any objection to the record.” And Judge Swift when speaking of it confines it to cases where counts are defective, and uses the term “may,” implying that it is discretionary. No authority to the contrary has been cited and we know of none. It is true there may seem to be a difficulty in determining what the sentence shall be, where there are two counts in the information embracing the same transaction, but laying it in a second count as constituting a different offense, of which the punishment is different. But in relation to that difficulty the court, in Crowley v. The Commonwealth, 11 Met., 575, in a case where two felonies requiring different degrees of punishment were laid in different counts, and a general verdict rendered, say that it must be left to the judge who tries the case, to apply the sentence according to the law and the facts proved. The presumption after a general verdict in such a case is, and must be, that the jury found the prisoner guilty of both offenses. The court can see upon the facts upon which of the two counts judgment should be entered, and the difficulty is apparent rather than real. At any rate the right to lay the same transaction in different counts and as constituting different offenses is essential to the administration of justice, and the remedy against the hardship of that rule must be left to the discretion of the judge, exercised during the trial or at the time of sentence. In England if two different felonies are charged in separate counts, the court will quash the indictment, but that is not the practice here. The court, ii two distinct transactions are joined, may direct the attorney to elect, and to nolle one of the counts. But if the same transaction is laid as a different offense in different counts, the court will not ordinarily interfere. In this case no right of the prisoner has been infringed, and we cannot say that any injustice has been done.

Eor these reasons we see no ground for ordering a new trial. It has been suggested on the argument that the prisoner upon another trial would be able to explain his possession of the property and the mystery which he claims attends it. But we cannot listen to such suggestions. If he has new evidence he can bring his petition for a new trial. If he can explain his possession of the property consistently with his innocence, he can apply to the pardoning power. As the case stands every principle of justice and duty requires of us an inflexible adherence to the rules of the law, and a preservation of its majesty.

The superior court is advised to pass sentence upon the verdict in accordance with the views expressed.

In this opinion all the other judges concurred, except Mc-Curdy, J., who dissented.