130 Tenn. 412 | Tenn. | 1914
delivered the opinion of the Court.
Willis was indicted for illegally receiving a deposit in the Knoxville Banking & Trust Company, while acting as cashier thereof. A demurrer was interposed to the indictment which was sustained and the indictment quashed. The State has appealed in error to this court.
The indictment is founded on chapter 44 of the Acts of 1911. That act reads as follows:
“That hereafter it shall be a felony for any officer or officers, agent or agents, or any other person or persons, having the control or management of any bank in this State, to receive, assent to the reception
The material words of the indictment are these:
“The grand jurors for the State of Tennessee, upon their oaths do present that W. W. Willis, heretofore, to wit, on or about the 14th day of December, 1912, in the State and county aforesaid, being an officer, to wit, cashier of Knoxville Banking & Trust Company, a corporation, and as such officer having the control and management of said Knoxville Banking & Trust Company, did on or about the 14th day of December, 1912, feloniously receive, assent to the reception of and permit the reception on deposit in said Knoxville Banking & Trust Company of fifteen hundred, thirty-seven dollars and thirty-nine cents, good and lawful money of the United States, the kind and denomination of same being to the grand jurors unknown, of the value of fifteen hundred, thirty-seven dollars and thirty-nine cents. Said money having been deposited by Charles F. Eager, agent, on or about December 14, 1912, and said defendant at the time of said deposit then and there knew and had good reason to believe that said Knoxville Banking & Trust Company was insolvent, against the peace and dignity of the State.”
Several grounds of demurrer were interposed, only one of which was sustained, which was:
It will be observed that only officers, agents, or persons having the control of a bank are within the scope of this act. An essential element of the offense is that the deposit be received by a person so connected with a bank, and a person so receiving a deposit, unless he have such connection with a bank, is not guilty of any offense. The relation of the accused to a bank is not a mere matter of proof in a prosecution under this statute, but such relation is a material element of the offense, and the relation must be both pleaded and proven.
Speaking of indictments many years ago, Judge Whyte of this court used language which has often since been quoted, and paraphrased, as follows:
“The description of the offense charged in an indictment ought to be competent to three purposes: First, competent to the information of the defendant, that he may know what offense he is called upon to answer; second, competent to the information of the court, that it may see a definite offense on record to apply the judgment,' and punishment which the law prescribes; third, competent to the protection of the defendant against a future prosecution for the same offense.” State v. Pearce, Peck, 66, 67.
There being no statement in the indictment that Willis had any relation with a bank, or received said deposit as an officer, agent, or person having control of a bank, it is obvious that this indictment is bad unless we can conclude that the language used in the indictment is equivalent to a charge that Willis was connected with a bank in the manner referred to in the statute.
The language of the indictment is that Willis was the cashier having control and management of Knoxville Banking & Trust Company, a corporation. Is this language equivalent to saying that he was cashier, having control and management of a bank or banking institution?
It is provided in section 7081 of Shannon’s Code that matters of which the court will take judicial notice need not» be set out in an indictment. Section 2033 of Shannon’s Code provides that:
“The secretary of State shall have published and bound with the acts of each general assembly a certified list of all corporations organized under this chapter since the last publication, giving the name and
This last section of Shannon’s Code is section 20 of chapter 142 of the Acts of 1875. The law is also well settled that courts will judicially notice the existence, name, and powers of a private domestic corporation created by a public act, and the authority to incorporate under, and powers conferred by, a general incorporation law. Owen v. State, 5 Sneed, 493; 16 Cyc., 881.
It having been averred in the indictment that Knoxville Banking & Trust Company was a corporation, and it being our duty to take judicial notice of the existence of all corporations chartered under our general law, the names of which are printed in the acts of the general assembly, with a view of aiding this indictment to stand, the court has examined every list of domestic corporations, published in the acts of our general assembly since 1875. We find in such examination no mention in any list of such a corporation as Knoxville Banking & Trust Company, nor do we find any special act creating such a corporation prior to the constitution of 1870.
Section 2033 of Shannon’s Code, above quoted, places these lists of domestic corporations in the same status as' the published acts of the legislature, of which the courts will take judicial notice, and no proof need be made of same. Coal Creek, etc., Co. v. E. Tenn., etc., Co., 105 Tenn., 563, 59 S. W., 634.
In order to sustain this indictment, it is therefore necessary to infer, from the fact that a certain institution was designated as Knoxville Banking & Trust Company, that said institution was a bank. To sustain an indictment in this way would violate the fundamental rules of criminal procedure.
The averment that this institution had a cashier does not indicate it was a bank, for many enterprises have officers or employees called “cashiers.” Water Co. v. Bank, 123 Tenn., 364, 131 S. W., 447. Nor is the averment that a single deposit was received by this concern particularly suggestive that it was a bank. These averments in the indictment are of no force.
It would not even be a fair inference to say that an institution was a bank merely because it was designated Knoxville Banking & Trust Company.
It is somewhat difficult to define a bank as appears from the discussion of definitions by Mr. Morse. See Morse on Banks & Banking, vol. 1, sec. 2. He gives several definitions, and says:
“Practically, a bank is a place where deposits are received and paid out on checks and money is loaned
Other definitions of a hank will be found in 5 Cyc., 431.
It is a matter of common knowledge that many stock and bond brokers, money lenders, and even pawnbrokers advertise their establishments as banks or trust companies. This is done to dignify their concerns, and is done to a great extent. Even bucketshops are so called. Such enterprises so designated do not receive deposits subject to check, or transact other customary banking functions, and none of them could be considered a bank within the broadest meaning of that word. Accordingly, the designation of an institution as a banking and trust company means very little. The business conducted may not be that of a bank at all.
But, in addition to this, this court said many years ago, speaking of an indictment under consideration:
‘ ‘Nothing but inference could sustain the indictment, and we must not be driven to intendment to support prosecutions on behalf of the State.” Steinston v. State, 6 Yerg., 531.
“Prosecutions cannot be sustained by intendment, but everything necessary to constitute the offense must be averred.” Jones et al. v. State, 16 Lea, 466.
We have many other cases to the same effect. It must be remembered that this is a statutory offense with which defendant below was charged, and a late expression of this court is as follows:
In this case it was held that a charge that defendant did “ill treat”' a certain female did not amount to a charge of a battery upon the said female. We have many other illustrations in our cases of the rule that indictments founded' on a statute must bring the defendant within all the material words of the statute, and nothing can be taken by intendment. See State v. Jones, 2 Yerg., 22; Grandison v. State, 2 Humph., 451; Elijah v. State, 2 Humph., 455; Williams v. State, 8 Humph., 585.
After • a very caréful consideration of this indictment, and of the authorities bearing on the questions raised in this case, we are forced to the conclusion that the trial judge properly sustained the ground of demurrer mentioned and quashed the indictment. To say that defendant was an officer having management
This indictment is not competent to the information of the court. ■ It describes no offense under the laws of Tennessee.
It may be proper to observe that the court has fully considered the constitutional objections urged to chapter 44 of the Acts of 1911 in State v. Willis (No. 2 Anderson Criminal), 170 S. W., 1030, and is of opinion that none of said objections are well taken, and we believe the act is valid.
The judgment must be affirmed.
