Stewart v. State

Mar 15, 1909

Versions:49 So. 615

95 Miss. 627

Smith, J.,

delivered the opinion of the court.

The appellant was convicted in the court below upon an indictment charging thаt as cashier of a certain bank he received a deposit, knowing, or having good reason to believe, that said bank ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was insolvent, without informing the depositor' therеof. The sixth instruction given the jury at the request of the state is as follows: “The court instructs the jury, for the state, that *633even though they may believe the defendant, at the timé he may have rеceived the deposit, did not know or have good reason to believe that the Scranton State 'Biank was then and there insolvent, yet if they believe that his failure to knоw hr have good reason to believe’ that the said bank was insolvent was duo to his failure to use reasonable diligence in making proper investigation and inquiry to ascertain the insolvent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍condition of said bank, and that there were circumstances known to him which, if investigated, would have afforded him good reason to believe the bank to bе insolvent, then if they believe that he received the deposit as charged, and that the bank was insolvent on the 24th day of July, 1906, it is the duty of the jury to find the defendant guilty as charged.” The giving of this instruction is assigned as error.

Section 1169 of the Code of 1906, under which this indictment was found, is as follows: “If the president, manager, cashier, teller, assistant, clerk, or other emplоyee 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, shаll remove or secrete or conceal the assets or effects of suсh establishment for the purpose of defrauding any of the creditors of the establishmеnt, or shall receive any deposit knowing, or having good reason to believe, thе establishment to be insolvent, without informing the depositor of such condition, on conviсtion, he shall be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍imprisoned in the penitentiary not longer than five years.” Under this statute сertain facts must exist before a crime can be committed by receipt of thе deposit and the failure to inform the depositor of the insolvency of the bank. Among these facts are the knowledge of such insolvency on the part of the person receiving the deposit, or his having good reason to believe the bank insolvent. These facts, or one of them, must be established by the evidence, and believed tо exist by the jury, before such person can be convicted of a crime under the statute. Even though the bank is insolvent, such person could not commit a crime under the statute, unless *634lie in fact knew of suck insolvency, or in fact Kad good reason to believе tbe bank insolvent. Under tbis instruction tbe jury were told that they might convict tbe defendant, although they might believe from tbe evidence that these facts did not exist. It is not tbe law that, if tbe nonеxistence of these facts — that is, knowledge or good reason to believe- — wаs due to negligence on tbe part of tbe person charged with receiving tbe dеposit, sucb person may still be convicted of tbe crime^defined by tbe statute. Wherе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a statute makes tbe existence of certain facts, as in the 'case at bar tbe statute has made the existence of tbe fact of knowledge or good reason to believe, essential to tbe commission of a crime, then sucb crime сannot:be committed unless sucb facts exist, even though it should appear that such facts would have been brought into existence, bad tbe person charged with the crimе done or not done certain things. Penal statutes must be strictly construed, and tbe courts сan neither add to nor take from them. State v. Dunning, 130 Iowa, 678, 107 N. W. 927, and authorities therein cited.

It is argued on behalf of tbe state that tbis ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍instruction was approved in tbe case of Rourke v. State, decided some time since by tbis court, in whiсh there was no opinion. In tbis counsel are in error. In that case there was no sucb instruction given on behalf of tbe state. In bis motion for a new trial, defendant complained of tbe modification by tbe court of certain of bis instructions; but in tbe instructions given for tbe defendant, as modified by tbe court, tbe jury were not told, except by inference, that they might convict under tbe circumstances set out in tbe instruction complained of in tbe case at bar.

■We consider no other assignment of error. Por tbe error committed in giving tbe sixth instruction, the judgment of the court below is reversed, and the cause remanded.