Davey v. State

• Decision Date: 03 July 1911
• Citation: 139 S.W. 629,99 Ark. 547
• Parties: DAVEY v. STATE
• Court: Arkansas Supreme Court

139 S.W. 629

99 Ark. 547

DAVEY v. STATE

Supreme Court of Arkansas

July 3, 1911

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.

Reversed and remanded.

Williams & Williams and Walker & Walker, for appellant.

1. The demurrer to the indictment should have been sustained because the act under which the indictment was brought applies to banks organized or doing business under the laws of the State of Arkansas, and the indictment does not allege that the Bank of Siloam was either organized or doing business under the laws of the State of Arkansas. Kirby's Digest §§ 1813, 1814. This is a criminal statute, which must be strictly construed. No case can be brought within its provisions unless it is within both the letter and the spirit of the law. Lewis, Sutherland, Stat. Construction, 456 to 459, and 515, 520 to 525; 38 Ark. 519; 40 Ark. 97; 43 Ark 413; 59 Ark. 341; 53 Ark. 334; 48 Ark. 66; 1 S.W. 838; 28 S.W. 172.

2. In order to hold the defendant criminally liable, it was necessary that the indictment should allege whatever is in law essential to his punishment. 1 Bishop on Criminal Proc § 70; Id. § 81, and authorities cited in note 1.

3. Notwithstanding a trial court's discretion in matters of continuance, the motion for continuance in this case should, in the light of the facts set up therein, and of the subsequent developments upon the trial, have been granted.

4. The court erred in permitting the State, after both sides had closed and after the jury had been instructed, to introduce the testimony of F. L. Main to prove that in September, 1909, he made certain deposits, and also in permitting him to testify that in February and March, 1909, he thought his account was "in the black." This testimony injected a new issue into the case, of which defendant had no knowledge, and for which he was given no time to prepare, an issue not raised by the allegations of the indictment.

Hal. L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. The demurrer was properly overruled. The indictment clearly charges the commission of a statutory (not common law) offense, with such certainty as to put the defendant upon notice of what he is expected to answer, and it is charged with such degree of certainty as to enable the court to pronounce judgment on conviction. An indictment, under our Code, will not be quashed except for some defect that affects the substantial rights of the defendant on the merits. Kirby's Dig., §§ 2228-2229; Id. 2241-2243; 93 Ark. 406; 21 Id. 65; 22 Id. 81. The indictment is good, notwithstanding it does not allege that the Bank of Siloam was an Arkansas corporation. The statute reads: "Every officer, agent or clerk of any bank, organized or doing business under the laws of the State, etc." Kirby's Dig., § 1813. The use of the disjunctive "or" indicates that the Legislature intended the law to apply to any bank, whether organized under the laws of the State, or doing business under the laws of the State. It was not necessary to allege the domicile of the corporation, unless that fact was necessary to identify properly the offense. 48 Ark. 94; 94 Ark. 327.

2. The motion for continuance was addressed to the sound discretion of the court, and no abuse of that discretion is shown, 26 Ark. 323; 54 Ark. 243; 41 Ark. 153; 51 Ark. 167; 34 Ark. 720; 70 Ark. 521; 71 Ark. 62; 76 Ark. 290; 94 Ark. 539; Id. 169.

MCCULLOCH, C. J. HART, J., dissents.

OPINION

MCCULLOCH, C. J.

The grand jury of Benton County returned the following indictment (omitting caption) against the defendant, Fred A. Davey:

"The said Fred A. Davey, in the said county of Benton in the State of Arkansas, on the 4th day of August, 1910, being then and there the cashier of said 'Bank of Siloam,' said bank being a corporation, and doing a banking business in the city of Siloam Springs in said county, unlawfully, knowingly and feloniously did accept and receive on deposit in said 'Bank of Siloam,' a corporation as aforesaid, of and from F. L. Main, to his own personal account, the sum of $ 18 in gold, silver, and paper money, current money in the State of Arkansas, and circulating as money in the State of Arkansas, of the value of $ 18, the personal property of F. L. Main, said 'Bank of Siloam' being then and there insolvent, the said Fred A. Davey being the cashier of said 'Bank of Siloam,' well knowing at the time he accepted and received said money on deposit that said 'Bank of Siloam' was insolvent, against the peace and dignity of the State of Arkansas."

The court overruled a demurrer to the indictment, and upon a plea of not guilty being entered the defendant was tried and convicted.

The indictment was preferred under the following statute:

"Section 1813. Every officer, agent or clerk of any bank organized or doing business under the law of the State, who wilfully and knowingly subscribes to or makes any false reports, or any false statements or entries in the books of such bank, or knowingly subscribes or exhibits any false writing or paper, with the intent to deceive any person or persons as to the condition of such bank, shall be punished by fine not exceeding one thousand dollars and imprisoned in the county jail not exceeding one year."

"Section 1814. No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money, or currency, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to, or permit or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the State penitentiary not less than three years and not more than five years." Kirby's Digest, §§ 1813 and 1814.

It is insisted by the appellant that the indictment is defective in failing to charge that the Bank of Siloam was "organized or doing business under the laws of the State of Arkansas." It does, in fact, charge that said bank was a corporation and was doing a banking business at Siloam Springs in this State. It is by no means certain that only corporations engaged in the banking business fall within the terms of the statute, for the second section refers broadly to any bank, which indicates that it is the business of banking at which the statute is aimed, regardless of the form of control, whether through corporations or individuals or partnerships. But, as the indictment charges that this bank was a corporation, it is unnecessary to discuss that question. Certainly it is not material that the corporation should have been organized under the laws of this State, for those organized under the laws of other...