State v. Munroe
| Decision Date | 16 February 1918 |
| Citation | 201 S.W. 100,273 Mo. 341 |
| Parties | THE STATE v. ROBERT B. MUNROE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. E. M. Deering, Judge.
Reversed and remanded.
Clyde Williams, Adrian Steele, J. L. Hornsby, Paul Bakewell and Major & Revelle for appellant.
(1) There was a failure of proof or a fatal variance, the charge in the indictment being that defendant received $ 800 in lawful money of the United States, when the evidence showed he received a draft for $ 800 drawn upon a bank in the State of Louisiana. State v. Mispagel, 207 Mo. 557; State v. Castleton, 255 Mo. 201; State v Rosefelt, 184 S.W. 904; State v. Salmon, 216 Mo. 521; State v. Shapiro, 216 Mo. 359; State v Plant, 209 Mo. 307; State v. Ballard, 104 Mo 634; Lory v. People, 229 Ill. 268; Goodheu v. People, 94 Ill. 37; People v. Cronkite, 260 Ill. 438; Commonwealth v. Howe, 132 Mass. 250; Commonwealth v. Woods, 142 Mass. 450; State v. Quackenbush, 108 N.Y. 953; Carr v. State, 104 Ala. 43; United States v. Greve, 65 F. 488; United States v. Smith, 152 F. 542; Bishop on Statutory Crimes (3 Ed.), sec. 346; 1 Mitchie on Banks and Banking, p. 427; Wharton's Criminal Evidence, sec. 122; Balbach v. Frelinghuysen, 15 F. 675; United States v. Hess, 124 U.S. 486; Evans v. United States, 153 U.S. 587. (2) There was no evidence that defendant was such an agent of the Jefferson County Bank as to make him criminally liable as contemplated by Sec. 4585, R. S. 1909, and defendant's peremptory instructions should have been given. Sec. 4585, R. S. 1909; 31 Cyc. 1386; 31 Cyc. 1206; State v. Sarlls, 34 N.E. 1130; Gillett on Crim. Law, sec. 410, p. 344; State v. Sattley, 131 Mo. 491. (3) The court erred in admitting evidence which was incompetent and prejudicial to defendant: (a), Notes which are not shown to be the assets of the bank; (b), Other and different specific deposits from the one which was charged in the indictment; (c), Reports of the Bank Commissioner and correspondence between the Bank Commissioner and O. M. Munroe, of which defendant had no knowledge; and (d), Statements made by defendant some time after the death of O. M. Munroe and based upon information acquired by defendant as administrator. State v. Burlingame, 146 Mo. 226. (4) Under the provisions of section 4585, if the prosecution is against the owner, agent or manager of a private bank, such person must have knowledge, at the time of the receiving of the deposits, not of the insolvency or failing circumstances of the private bank, with its segregated assets, but, as the statute specifically provides, must have such knowledge of the insolvency or failing circumstances of the owner of such private bank. It is quite plain that the court submitted the case to the jury on the wrong theory and through wrong instructions, to-wit, that the defendant's knowledge at the time of the receipt of the deposit in question, was of the insolvency or failing circumstances of the private bank with its segregated assets, instead of his knowledge of the insolvency or failing circumstances, at the time, of the owner, and as the statute plainly states.
Frank W. McAllister, Attorney-General and S. E. Skelley, Assistant Attorney-General, for the State.
(1) This case should not be reversed because of alleged variance between the allegations of the indictment and the proof. (a) Under an indictment alleging that defendant, as the agent and manager of a private banking institution, received a "certain deposit of money, to-wit, eight hundred dollars in lawful money of the United States," knowing that said institution was then insolvent and in failing circumstances, proof that defendant so received, crediting the depositor's account with the amount thereof, a bank draft drawn on a foreign bank, is sufficient to sustain said allegation. Michie on Banks and Banking, p. 427; State v. Booth, 186 S.W. 1019; State v. Salmon, 216 Mo. 520; State v. Quackenbush, 98 Minn. 515; Parrish v. Commonwealth, 136 Ky. 377. (b) Acceptance of a draft for deposit, and the crediting of the depositor's account with the amount thereof, is equivalent to the receipt of said amount of money. State v. Booth, 186 S.W. 1019; State v. Salmon, 216 Mo. 520; Burton v. United States, 196 U.S. 302; Ellis v. State, 138 Wis. 513. (2) The court did not err in overruling defendant's peremptory instruction in the nature of a demurrer to the evidence at the close of the State's case. State v. Warner, 74 Mo. 85; State v. Pollard, 174 Mo. 614; State v. Wertz, 191 Mo. 578; State v. Swain, 239 Mo. 728; State v. Stewart, 116 Mo.App. 330. (3) The court did not err in admitting the following evidence because incompetent and prejudicial to the defendant. (a) Notes which are not shown to be the assets of the bank. The notes were shown to have been found among assets of the bank, and registered on the records of the bank. Said evidence was admissible. Michie on Banks and Banking, p. 437; Parrish v. Commonwealth, 136 Ky. 377. (b) Other and different specific deposits from the one which was charged in the indictment. The purpose for which they were admitted was limited and defined by State's instruction. Said evidence not sufficiently prejudicial to constitute reversible error. (c) Report of the Bank Commissioner and correspondence between the Bank Commissioner and O. M. Munroe, of which defendant had no knowledge. Defendant was present and assisted in the preparation of the report. The report was competent. Michie on Banks and Banking, p. 436; State v. Salmon, 216 Mo. 466. The correspondence between the Bank Commissioner and O. M. Munroe concerned said report.
Defendant was tried in the circuit court of Jefferson County, upon an indictment charging him with having, as agent of a certain private bank, received a deposit of money knowing that said bank was at the time insolvent and in failing circumstances. Being convicted upon this charge he has, after the usual motions, appealed.
Such of the facts, as are necessary to an understanding of the points raised upon this appeal, run substantially thus: On and prior to the 9th day of April, 1915, one Otis M. Munroe, the father of defendant, was the owner of a private bank in the town of De Soto, known as the Jefferson County Bank. Defendant was and had been for some years employed in this bank, and had assumed the title of assistant cashier. The deposit, for the receipt of which defendant was convicted, was made on the 1st day of April, 1915, and consisted of a draft for the sum of $ 800, drawn by a building-and-loan association of Shreveport, Louisiana, upon a bank situate in the latter State. The above draft was on the date last mentioned deposited by Sol Hohenthal, to the credit of his sister, Gertrude Hohenthal.
At the time of the making of this deposit, but two persons were employed in this bank; namely, defendant, who seems to have been acting as receiving teller, and cashier, and one Harry Brown, who seems to have been the bookkeeper. The father of the defendant, who, as stated, was the owner of this bank, was at the time lying ill in a hospital in the city of St. Louis. This owner had been seriously ill for something more than a year, and had been unable during that entire period to be in the bank or to give much personal attention to the affairs thereof; though the proof shows that in most instances wherein loans of any magnitude were sought to be made with the Jefferson County Bank, Otis M. Munroe, was constantly consulted and had the deciding voice; but the proof is abundant that defendant was in full charge of this bank in all other respects, and that he received deposits, paid out money to depositors, and made and passed on numerous small loans.
This bank continued in business without any overt financial difficulties until the said 9th day of April, 1915; on which date Otis M. Munroe died. Upon the death of the latter, and solely on account thereof, this bank was closed. Much evidence came in upon the question of the solvency or insolvency of the bank itself, and the proof tends to show that on the day at which the bank closed for the reason stated, it was (its segregated assets alone regarded) actually insolvent. There is no proof touching whether Otis M. Munroe, the owner of this bank, was or was not solvent on the first day of April, 1915, though there is proof in the record that he claimed, shortly prior to his death, to be worth some $ 44,000 more than his debts. Upon the trial of the case no attention seems to have been paid, by either side, as to the financial condition of Otis M. Munroe; both sides confining the proof adduced by them respectively to the condition of the bank itself with reference to the latter's solvency or insolvency, as compared to the actual segregated assets thereof which were used solely in the banking business. Upon the trial much proof was offered that defendant in addition to receiving the deposit for which he was herein convicted, had received about the same time from other persons divers similar deposits.
The indictment upon which this prosecution was bottomed is strenuously assaulted, and it therefore becomes very pertinent in our discussion of the case. Omitting signature and merely formal parts, all of which are conventional, and none of which is attacked, this indictment read thus:
"The grand jurors of the State of Missouri, impaneled, sworn and charged to inquire within and for the County of Jefferson and State aforesaid, upon their oath present and charge that Robert B. Munroe, on the 1st day of April, 1915, at the County of Jefferson, in the State of Missouri, being then and there the agent and manager of a certain private banking institution, known as the Jefferson County Bank, doing business at De...
To continue reading
Request your trial