121 Ark. 219 | Ark. | 1915
W. J. Wilkin was indicted for violating section 1814 of Kirby’s Digest by knowingly accepting and receiving on deposit .and by permitting and conniving .at the receipt and acceptance on deposit of money in the bank of which he was president when it was insolvent. He was tried before a jury and convicted, his punishment being fixed at three years in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.
This is a companion ease to that of Skarda v. State, reported in 118 Ark. 176, 175 S. W. 1190. Joe Skarda was the cashier and W. J. Wilkin was the president of the Bluff City Bank in the town of De Vail’s Bluff, Arkansas. The bank was placed in the hands of a receiver on March 20, 1913.
On February 28, 1913, E. B. Kobinson deposited a check for $600 in the bank. The check was accepted by the cashier and this was the transaction upon which the present prosecution is based.
We do not think the court erred in overruling the demurrer. This is not a case of an indictment charging in the .same count two separate and distinct offenses •for which different punishments are prescribed. The indictment charges the commission of but one offense. The act of knowingly receiving and accepting a deposit and knowingly permitting it to be received and accepted constitutes the same .offense. It is true it may be committed in a different mode but the punishment is the same and the same character of testimony is necessary in each case.
It may be well to state at the outset that the evidence on the part of the State tended to .show that the bank was insolvent at the time the deposit in question was received, that there had not been a meeting of the board of directors for many months prior thereto, that the affairs of the bank were in charge of the president 'and the cashier, .and that the president was engaged in the mercantile business, his store being just across the street from the bank and that he was daily consulted about the conduct of the business of the bank.
The defendant left the town of De Vail’s Bluff on the 18th or 19th day of February, 1913, and did not return until the first day of March, 1913. The testimony on the part of the defendant tended to show that his store house was burned on February 23,1913; that he was sick at the time his store was burned and returned home as soon thereafter as he was able to travel; that the cashier had the active control and management of the affairs of the bank; and that the defendant was of the opinion that if his store had not ¡burned down thus entailing upon him a great loss the affairs of the bank could have been so conducted and managed that it would not have become insolvent. His evidence .also tended to ¡show that he did not give the cashier any direction whatever in regard to the deposit in question.
Our Constitution has expressly fixed the boundaries of the State ¡and it is clear that each State is sovereign within its o'wn limits. It is also equally clear that the criminal laws of a State can have no extra-territorial operation. The crime for which the defendant was indicted is a statutory offense and he may be deemed in law guilty under the ¡statute .although ¡at the time the crime was committed he was out of the State. For instance, if the defendant .as president of the bank had known of its insolvent condition .and the cashier and his assistants had not known of its insolvent condition ¡and the president had directed them to ¡continue to receive deposits .and had then gone beyond the limits of the State, he would have been guilty, under the statute, ¡although not personally within the State when the offense was actually committed. In such ease his agent acting under his .authority and guidance would be guiltless because he would not have received the deposit knowing the bank to be insolvent; and the president alone would be the guilty party although at the time of the perpetration of the offense he was out of the State ¡and within the limits of the State of Georgia. This is so because the defendant would have put into operation in this State the acts which constitute the essential elements of the crime.
It will be remembered that the gist ¡of the offense is receiving .and accepting or permitting to ¡be received and accepted deposits knowing the bank to be insolvent. In the instance last cited the president, knowing the bank to be insolvent, directed the ¡cashier ¡and his assistants to continue receiving deposits and then himself went beyond the boundaries ¡of the State ¡and although the deposit may have been received after he placed himself within the boundaries of ¡another State, yet he would be deemed guilty because be directed the deposits to be received while yet in the State of Arkansas.
As bearing on the question see Commonwealth v. White, 123 Mass. 430, 25 Am. Rep. 116; People v. Adams. 3 Denio (N. Y.) 190, 45 Amer. Dec. 468; Johns v. State, 19 Ind. 421; Wharton’s Criminal Law (11 ed.), Vol. 1, Sec. 324 and 333.
Again, if the president and cashier, both knowing the ■bank to be insolvent, should agree that the president should leave the State and that the cashier should continue to receive deposits while he was gone, and deposits should be received after the president had gone out of the State, the president would be guilty because the offense stated would amount to a conspiracy and it is well settled that each conspirator is responsible in any place where any overt act by any of his co-conspirators is done. In such case the crime having been concocted and started while the president was in 'the State of Arkansas, the immediate act of the cashier in receiving the deposit after the president left the 'State would be deemed in law the act of the president ¡also. See Wharton’s Criminal Law (11 ed.), Vol. 1, § 333.
Counsel for 'the State have cited the case of State of Mississippi v. Edmund Mitchell, 51 So. 4, 26 L. R. A. (N. S.) 1072, .and other cases of like character as holding to the contrary ,and as being authority that the defendant is guilty under the facts of the present case. We do not think the cases cited are susceptible of the interpretation placed upon them by counsel for the State. In the case just referred to the defendant was within the State of Mississippi at the time of the offense was committed. Therefore the question of 'his being within the limits of another State when the offense was committed did not arise and was not decided by the court. It will be observed that .in that case the defendant was within the jurisdiction of the courts of the State of Mississippi when the crime was committed and the question up. .for determination in this ease did not arise and was not determined. Moreover, in that case the bank was a partnership and the person receiving the deposit acted as agent for his principal, the principal knowing at the time that the bank was insolvent.
Wedo not deem it necessary to set out the instructions given by the court on the point we have just discussed. It is sufficient to say that the instructions entirely ignored the theory of the defendant to the effect that he did not conspire with the cashier to receive the deposit while he was within the State of Georgia. According to the testimony of the defendant Ms trip to the State of Georgia had no connection whatever with the affairs of the bank and he did not in any manner participate in the transaction for wMch he was indicted. That is to ®ay, according to the evidence adduced in his behalf the defendant did not in any manner participate in the transaction for which he was indicted. As .already indicated, the accused’® personal presence in the State is not always necessary to make ¡him guilty under the statute, but the court should have submitted to' the jury the question of his guilt or innocence under the principles of law above announced, and not having done so the judgment must be reversed.
It is also insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict; that is to ¡say, they claim that the State has failed to prove that the bank was insolvent or that the 'defendant knew it to he so. In view of another trial we think it best not to ¡state in detail the testimony on this point. A great mass of figures 'and other testimony was introduced and to attempt to set it out in detail would only lead to confusion when it is considered that -additional testimony may be received on a retrial oif the case. We deem it proper to say, however, that ;a careful consideration of the whole record leads us to believe that there was testimonyof a substantial ¡character which, if believed by the jury, would warrant it in finding the defendant guilty.
For the errors indicated, the judgment must be reversed .and the canse remanded for a new trial.
Kirby’s Digest, § 1814.