49 So. 615 | Miss. | 1909
delivered the opinion of the court.
The appellant was convicted in the court below upon an indictment charging that 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' thereof. The sixth instruction given the jury at the request of the state is as follows: “The court instructs the jury, for the state, that
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 employee 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, 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 to be insolvent, without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five years.” Under this statute certain facts must exist before a crime can be committed by receipt of the 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 to 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
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 which 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.