State v. Walker

41 So. 8 | Miss. | 1906

Mates, J.,

delivered the opinion of the court.

Walker was indicted under sec. 1089 of the code of 1892, which is as follows, viz.:

“If the president, manager, cashier, teller, assistant, clerk, or other employe 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 other 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 insolvent, without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five years.”

The first count of the indictment, after setting out the fact that Walker was the president of a bank, engaged in the business of receiving money on deposit for other persons, proceeds to charge that the bank was insolvent, and that Walker well knew it was insolvent, and that he “did, on divers dates and times aforesaid, unlawfully, willfully and feloniously receive on deposit from divers persons, whose names are to the grand jurors unknown, without then and there informing such persons and depositors of the insolvent condition of the bank.” The second count is a duplicate of the first, except that, instead of charging that "Walker “well knew that the bank was insolvent,” it charges “that he had good reason to believe” it was insolvent. The third count is identical with the first count, except that it names five persons from whom Walker received the deposits.

It is manifest from the statute that each and every time a deposit is made, when the condition exists which requires the president, manager, etc., to notify the depositor, and the notice is not given, an offense is committed under the statute, and each offense so committed is a separate and distinct offense. The crime created by the statute can only be committed by the “president, manager, etc., of a bank, or broker’s office, or establishment conducting the business of receiving on deposit the money or other valuable things of other personsbut, when it is shown that the person of the designated class is “conducting the business,” etc., a single act of receiving one deposit completes the crime, and the crime is committed just as often as the act is repeated. The statute plainly says he shall be guilty of the crime while conducting the business named by the statute if he receive “any deposit” without notifying “the depositorusing such language as clearly indicates that every single act of receiving any deposit is a separate and distinct offense. “Conducting the business” is one of the necessary links in the chain of facts necessary to constitute the crime. A person not “conducting the business” cannot commit the crime. Therefore, as a matter of necessary description, it must be alleged that the person charged was “conducting the businessbut the crime made by the statute is the receiving of “any deposit” without notifying “the depositor” by a person so engaged. The one single criminal act necessary to constitute the crime is the receiving of “any deposit” without notifying “the depositor.” There is nothing criminal in “conducting the business” and receiving deposits, even when the bank is in an insolvent condition. It becomes criminal only when the president, manager, etc., fails to inform the depositor. The first and second counts in the indictment are bad for the reason that they charge “divers” separate and distinct felonies in the same count. The third count of the indictment “is bad. for the reason that it charges as many separate and distinct felonies as there are parties named in the count.

It is argued by counsel for the state that the offense created by the statute is the “conducting of the business of receiving deposits,” and that the offense is not committed by the single act of receiving one deposit, blit that it is a continuing crime, committed “conducting the business of receiving deposits,” and, no matter how many deposits are made, there is but one crime. The statute does not say this. It says, if the president, manager, etc., of a bank, etc., conducting the business of receiving on deposit money, etc., shall receive “any deposit” without informing the depositor, on conviction, he shall be punished, etc. While conducting the business of receiving deposits, if he shall receive any deposit without notifying the depositor, he has committed the crime named by the statute. We think the action of the lower court was correct in sustaining the demurrer to the indictment, and after a careful research of the authorities we can find no authority that holds that separate and distinct felonies may be charged in the same count. Sprouse v. Commonwealth 81 Va., 374; Fisher v. State, 33 Texas, 792; Hill v. State, 72 Miss., 527 (17 South. Rep., 375) ; Burges v. State, 81 Miss., 484 (33 South. Rep., 499) ; Teat v. State, 53 Miss., 439 (24 Am. Rep., 708) ; Strawhern v. State, 37 Miss., 422.