No. 11159 | Kan. | Dec 10, 1898
The opinion of the court was delivered by
The appellant, Alexander Warner, was charged by the county attorney of Cherokee county with having accepted and received on deposit in the Baxter Bank money, and drafts circulating as money, when the bank was insolvent. It is alleged in the information that the Baxter Bank was a corporation and that Alexander Warner was its president, Ben. S. Warner vice-president, A. A. Warner cashier, and Russell E. Davis clerk and bookkeeper. All of these persons were jointly charged with receiving deposits knowing the bank to be insolvent. The appellant, on a separate trial, was convicted and sentenced on the first, fifth, seventh and tenth counts of the information, which contained eleven counts. The second, fourth, sixth, eighth and eleventh counts charged the appellant with being accessory to the receipt of deposits, and the ninth charged him with having permitted and connived at the receipt of the same deposit which the seventh count charged him with having accepted and received. The jury found the defendant guilty on the third count, but as to this the court granted a new trial. The sentence was to confinement in the penitentiary for the term of one year on each of the counts on which he was convicted.
It is first contended that the banking act of 1891,
The next contention is that in certain counts of the information the defendant was charged with having received checks. It is said that section 16, chapter 48, Laws of 1891, under which the information was drawn, does not use the word “checks” ; that there is a clear distinction in the law between a check and a draft; that the proof was of deposits of checks properly so denominated, and that the motion to quash the information as to these counts, because it did not state facts sufficient to constitute a public offense, should have been sustained. The distinction pointed out by counsel is between bills of exchange, properly so termed, and private checks. In Bouvier’s Law Dictionary, Rawle’s Revision, draft is thus defined : “An order for the payment of money drawn by one person on another. (1 Story, 30.) It is said to be a nomen generalissimum, and to include all such orders. (Id., per Story, J.) ” Worcester defines it: “An order by which one person draws on another for a certain sum of money, a check, a bill of exchange.” In 5 American and English Encyclopedia of Law (2d ed.), 1029, it is said : “A check is a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds, for the payment at all events of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand.”
The defendant moved the court to require the state to elect on which count it would rely for conviction. This motion was overruled, and it is strenuously insisted that this was error. The information charged five separate and distinct transactions with different persons, and the defendant has been sentenced to punishment on each of four different counts. It is
“Several separate and distinct felonies may be charged in separate counts of one and the same information, where all the offenses charged are of the same general chai’acter, requiring the same mode of trial and the same kind of evidence, and the same kind of punishment, and the defendant may be tried upon all the several counts at one and the same time, all resting in the sound judicial discretion of the trial court.”
It is said by counsel that the authorities cited in the opinion in that case do not uphold the conclusion reached by the court. It does appear that the prior decisions of this court cited in the opinion were in prosecutions for xnisdemeanors, and it has long been the settled law that such joinder is proper in prosecutions for misdemeanors. It is said that these decisions have no bearing and give no support to the proposition that a defendant may be convicted axid punished for several distinct felonies on one trial. While this is true as to the Kansas cases cited, the other citations (Whart. Cr. Pl. & Pr., § 285, et seq., 1 Bish. Cr. Proc. (3d ed.), §§ 424, 450, 451, and 4 A. & E. Encycl. of L. (1st ed.) 754, 756) do give support to the conclusion x’eached by the court. The reasons for the distinction which formerly prevailed in England between prosecutions for felonies and for misdemeanors no longer exist. Where the usual punishment for the commission of a felony was death, great strictness in charging the offense, as well as in the mode of trial,
The last and most serious question is as to the sufficiency of the proof. It is claimed on behalf of the' appellant that there is a total want of proof to sustain the charge that he received or accepted any one of the deposits mentioned in the counts under which the conviction was had. Counsel for the state have failed to call our attention to any testimony in the record showing that Alexander Warner personally took either of the deposits, or even had any knowledge that any one of them was in fact made. We have examined the testimony with some care, and fail to find any statement in the record showing that the appellant had any direct connection with the receiving of any of these deposits, or that he did anything as a distinct acceptance of any of them. The only
“No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts circulating as-money or currency, when such bank is insolvent; and any officer, director, cashier,, manager, member, party, or managing party of any bank, who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony. . . .”
The charges contained in the counts of the information under which the conviction was had were all that the defendant accepted and received on deposit the several items described. It must be borne in mind that the Baxter Bank was a corporation. The connection of the appellant with it was that of an officer. He is not charged with being the owner. The other persons connected with the bank were its officers and employees. Possibly a private banker who employed clerks and servants to receive deposits might be bound even in a criminal case by their acts where their possession immediately became his, but the statute as framed seems to denounce its penalties against the individual who shall take deposits into the bank when he knows it to be insolvent, and also against all others
Whether the evidence given at the trial in this case was sufficient to uphold a charge against the defendant of having permitted or connived at the receipt of the deposits, we need not decide. The charge is that he accepted and received. The word “ accepted ” implies that the bank received and that he agreed and assented to the reception. He could not accept without at least knowing what was received. The proof being insufficient to sustain the conviction under these counts of the information, the motion for a new trial should have been sustained. The judgment is reversed.